Trade Apartments Limited, Kolkata V. DCIT, Circle - 4(2), Kolkata, Kolkata

ITA 1241/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4761 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER; RADHEY SHYAM SRD
• Assessee Lawyers: D M DAMLE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (D), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 1241/KOL/2018 ASSESSMENT YEAR: 2012-13 TRADE APARTMENTS LTD...................................APPELLANT 31, NETAJI SUBASH ROAD, KOLKATA 700 001. [PAN: AABCT 2117 P] DCIT CIRCLE 4(2) KOLKATA.........................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI D.M. DAMLE, AR APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER & SHRI RADHEY SHYAM SR(DR), JCIT, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 06, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 15, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 7, KOLKATA DATED 27.03.2018 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A NON BANKING FINANCIAL COMPANY. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 11.09.2012 DECLARING A LOSS OF RS. 64,70,823/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 16.03.2015 THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT A LOSS OF RS. 26,98,900/- AFTER MAKING AN ADDITION OF RS. 37,71,922/- ON ACCOUNT OF DISALLOWANCE U/S 14A READ WITH RULE 8D. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLENGING THE 2 TRADE APARTMENTS LTD. I.T.A. NO.1241/KOL/2018 ASSESSMENT YEAR: 2012-13 DISALLOWANCE MADE BY THE AO U/S 14A AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS ORDER DATED 27.03.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. IN THIS REGARD, HE HAS FILED AN AFFIDAVIT OF SHRI ALOK KALANI, A REPRESENTATIVE AUTHORISED BY THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE LD. CIT(A) AFFIRMING THE RELEVANT FACT ON OATH AS UNDER: 1. I AM THE AUTHORSED REPRESENTATIVE OF M/S. TRADE APARTMENTS LTD. 31, NETAJI SUBHAS ROAD, KOLKATA 700 001 (HEREINAFTER REFERRED TO AS THE COMPANY). 2. AGAINST THE ORDER U/S 143(3) DATED 16.03.2015 PASSED BY THE DCIT, CIRCLE 4(2), KOLKATA FOR THE ASSESSMENT YEAR 2012-13, THE COMPANY HAD FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA (HEREINAFTER REFERRED TO AS THE CIT(A)). 3. A NOTICE OF HEARING DATED 03.04.2017 FOR THE SAID APPEAL WAS ISSUED BY THE LD. CIT(A)-2, KOLKATA BEARING APPEAL NO. 117/CIT(A)-2/2015-16 FIXING THE DATE OF HEARING ON 27.04.2017. 4. ON 27.04.2017, I HAD APPEARED BEFORE THE LD. CIT(A)-2 WITH THE WRITTEN SUBMISSION IN SUPPORT OF THE GROUNDS OF APPEAL PREFERRED BY THE COMPANY AND THE LD. CIT(A) MENTIONED THAT HE WAS BUSY IN SOME URGENT AND HE STATED THAT A NEW NOTICE OF REFIXATION OF HEARING WILL BE ISSUED. 3 TRADE APARTMENTS LTD. I.T.A. NO.1241/KOL/2018 ASSESSMENT YEAR: 2012-13 5. ON 10.01.2018, ANOTHER NOTICE OF HEARING WAS ISSUED BY THE LD. CIT(A)- 7, KOLKATA BEARING APPEAL NO. 1237/(A)-7/KOL/2017-18 FIXING THE HEARING ON 01.02.2018. 6. ON 01.02.2018, I HAD GONE TO ATTEND THE HEARING BEFORE THE LD. CIT(A)-7, KOLKATA. HOWEVER, THE CIT(A) WAS NOT IN OFFICE AND UPON ENQUIRY FROM THE OFFICE OF THE CIT(A)-7, KOLKATA. I WAS INFORMED BY THE OFFICE OF THE CIT(A) THAT THE CIT(A) HAS GONE OUT FOR SOME URGENT WORK AND A FRESH NOTICE OF HEARING WILL BE ISSUED. 7. I STATE THAT AFTER THE AFORESAID NOTICE DATED 01.02.2018, NO NOTICE OF HEARING DATED 04.02.2018 FIXING THE HEARING ON 20.02.2018OR ANOTHER NOTICE FIXING THE HEARING ON 12.03.2018 WAS RECEIVED BY THE COMPANY. 5. KEEPING IN VIEW THE ASSERTION MADE IN THE AFFIDAVIT AS ABOVE, WE ARE SATISFIED THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE AND THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO DISPUTE THIS POSITION. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2019. SD/- SD/- (A. T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 15/02/2019 BISWAJIT, SR. PS 4 TRADE APARTMENTS LTD. I.T.A. NO.1241/KOL/2018 ASSESSMENT YEAR: 2012-13 COPY OF ORDER FORWARDED TO: 1. TRADE APARTMENTS LTD., 31, NETAJI SUBHAS ROAD, KOLKATA 700 001. 2. DCIT, CIRCLE 4(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA