M/s Sao Finance & Properties (p) Ltd., Kolkata V. DCIT, Cir-2(2)Kol., Kolkata

ITA 122/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1446 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 24-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAMA BHATTACHERJEE
• Assessee Lawyers: VINEET SINGH STAFF
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 14A

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 122 / KOL / 20 17 ASSESSMENT YEAR :2012-13 M/S SAO FINANCE & PROPERTIES (P) LTD., 310, KAMALALAYA CENTRE, 156A LENIN SARANI,KOLKATA-13 [ PAN NO.AAGCS 9361 M ] V/S . DCIT, CIRCLE-2(2), AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI VINEET SINGH, STAFF /BY RESPONDENT SHRI ARINDAMA BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 27-02-2018 /DATE OF PRONOUNCEMENT 28-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DAT ED 05.12.2016. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-2(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 21.03.2015 FOR ASSESSMENT YEAR 2012-13. THE GROUNDS AS RAISED BY THE ASSESSEE READS AS UNDER:- 1. FOR THAT THE LD. CIT(APPEALS) ERRED IN PASSING O RDER BY NOT GIVING SUFFICIENT OPPORTUNITY TO APPEAR AND ADVOCATE THE CASE. 2. FOR THE LD. CIT(APPEALS)ORDER SHOULD BE REMANDED AGAIN FOR HEARINGS YOUR ASSESSEE PLEA ON THE BASIS OF NATURAL JUSTICE. 3. FOR THAT THE LD. CIT(APPEALS) ERRED IN KEEPING T HE ADDITION OF UNSECURED LOAN OF R.1,54,00,000/- AND INTEREST OF RS.1,14,554 /- ON UNSECURED LOAN TO THE TOTAL INCOME OF THE ASSESSEE ADDED BACK BY THE LD. AO ON ARBITRARY BASIS. 4. FOR THAT THE LD. CIT(APPEALS) ERRED IN KEEPING T HE ADDITION OF RS.31,83,743/- U/S/. 14A READ WITH RULE 8D OF THE I NCOME TAX ACT, 1961. ITA NO.122/KOL/2017 A. Y. 2012-13 M/S SAO FINANCE & PROPERTIES (P) LTD. VS. D CIT CIR-2(2) KOL. PAGE 2 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, LATER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. VINEET SINGH, LD. AUTHORIZED REPRESENTATIVE APPEARE D ON BEHALF OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEE, LD. DEPARTMENTAL RE PRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. THE ASSESSEE FILED AN ADJOURNMENT PETITION DATED 26-02-2018 ON THE PREMISE OF PREPARATION & FILING OF PAPER BOOK. HOWE VER, IT WAS OBSERVED THAT THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER CONFIRMING THE ORDER OF THE ASSESSING OFFICER WITHOUT DECIDING THE ISSUE ON MER IT. THE LD. CIT(A) CONFIRMED THE ORDER OF THE AO EX PARTE DUE TO FACT THAT THE ASSESSEE FAILED TO ADVANCE ANY ARGUMENTS ON MERITS AND FAILED TO ATTEN D THE DATES OF HEARINGS FIXED BY THE LD. CIT(A) DURING THE APPELLATE PROCEE DINGS. THEREFORE, THE IMPUGNED EX PARTE ORDER WAS PASSED BY THE LD. CIT(A) VIDE ORDER DATE D 05.12.2016. IN VIEW OF ABOVE, WE REJECTED THE ADJOU RNMENT PETITION FILED BY THE ASSESSEE AND DECIDED TO PROCEED TO HEAR THE CASE ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 3. IT WAS FURTHER SUBMITTED IN THE GROUNDS OF APPEA L THAT THE IMPUGNED ORDER WAS DISPOSED OF BY THE LD. CIT(A) WITHOUT GIV ING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE AND AS SUCH, IT WAS PLEA DED BEFORE US IN THE GROUNDS OF APPEAL TO PROVIDE ONE MORE OPPORTUNITY A ND ACCORDINGLY THE MATTER SHOULD BE SET ASIDE TO THE LD. CIT(A). 4. PER CONTRA, IT IS THE ARGUMENT OF LD. DR FOR THE REVENUE THAT OPPORTUNITIES WERE GIVEN TO ASSESSEE BUT HE DID NOT AVAIL THE SAME. THEREFORE THE LD. CIT(A) HAD NO OPTION BUT TO DISPOSE OF THE MATTER EX PARTE . 5. BE THAT AS IT MAY, IT IS CLEAR FROM THE RECORD A ND LOOKING AT THE ABSENCE OF THE ASSESSEE, LD. CIT(A) CONCLUDED THAT THE ASSE SSEE HAS NO INTEREST TO PURSUE THE MATTER AND TO GET IT DISPOSE OF ON MERIT S. ON PERUSAL OF THE MATTER, IT OCCURS TO OUR MIND THAT LD. CIT(A) IS MOTIVATED TO DISPOSE OF THE MATTER EX PARTE ONLY BECAUSE OF HIS OBSERVATION THAT THE ASSESSEE FAILED TO APPEAR ON THE DATES OF HEARINGS. IN OUR CONSIDERED OPINION, I T CANNOT BE A GROUND TO DENY JUSTICE WITHOUT GIVING REASONABLE OPPORTUNITY TO TH E PARTY AFFECTED. IT IS ITA NO.122/KOL/2017 A. Y. 2012-13 M/S SAO FINANCE & PROPERTIES (P) LTD. VS. D CIT CIR-2(2) KOL. PAGE 3 BECAUSE IN THE INSTANT CASE THE ASSESSEE ALSO FILED ADJOURNMENT PETITIONS BEFORE THE LD. CIT(A). THE PROVISIONS OF SECTION 25 0(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN W RITING WITH REASONING. BUT WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO C ONFIRMED THE ORDER OF AO WITHOUT DECIDING THE SAME ON MERIT. WE ALSO FIND IN THE INTEREST OF JUSTICE AND FAIR PLAY LD. CIT(A) SHOULD HAVE GIVEN ANOTHER OPPO RTUNITY TO THE ASSESSEE TO APPEAR BEFORE HIM TO EXPLAIN ITS POINTS OF CONTENTI ONS. THUS, WE ARE OF THE OPINION THAT LD. CIT(A) SHOULD HAVE GIVEN SUFFICIEN T TIME FOR ASSESSEE TO PRESENT ITS CASE FULLY AND EFFECTIVELY, THEREFORE T O MEET END OF JUSTICE WE SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A) FOR DISP OSAL AFRESH AND ACCORDING TO LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HE ARD TO ASSESSEE. NEEDLESS TO SAY THE ASSESSEE TO CO-OPERATE INCLUDING THE APP EARANCE AND PRODUCTION OF BOOKS OF ACCOUNT AS AND WHEN THE MATTER IS TAKEN UP BY LD. CIT(A). WE ORDER ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28/ 02/2018 SD/- SD/- ($ &) ( &) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 28 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S SAO FINANCE &PROPERTIES (P) LTD., 310, KAM ALALAYA CENTRE, 156A, LENIN SARANI, KOL-13 2. /RESPONDENT-DCIT, CIRCLE-2(2), AAYKAR BHAWAN, P-7, C HOWRIGHEE SQ. KOLKATA-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,