Toptans, Kolkata V. ACIT, CIR-32, KOLKATA, Kolkata

ITA 1252/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4711 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-10-2015
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

I.T.A. NO. 1252/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 1252 /KOL/ 2015 ASSESSMENT YEAR: 2010-2011 TOPTANS,........................................... ..........................................APPELLANT C/O. D.J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020 [PAN : AABFT 8191 J] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ......................RESPONDENT CIRCLE-32, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: SHRI MIRAJ D. SHAH, FCA, FOR THE ASSESSEE SHRI RAJENDRA PRASAD, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 28, 2016 DATE OF PRONOUNCING THE ORDER : AUGUST 05, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA PASSED EX PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR NON- PROSECUTION WITHOUT GOING INTO MERITS. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURER AND EXPORTE R OF LEATHER AND LEATHER GOODS. THE RETURN OF INCOME FOR THE YEAR UN DER CONSIDERATION WAS FILED BY IT ON 29.09.2010 DECLARING TOTAL INCOME OF RS.13,65,040/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN O RDER DATED I.T.A. NO. 1252/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 2 OF 3 19.03.2013, THE TOTAL INCOME OF THE ASSESSEE WAS DE TERMINED BY THE ASSESSING OFFICER AT RS.22,73,845/- AFTER MAKING TH E FOLLOWING ADDITIONS:- (I) TRADING ADDITION ON ACCOUNT OF LOW G.P....... RS.4,83,170/-; (II)DISALLOWANCE UNDER SECTION 43B................ .....RS.11,880/-; (III) DISALLOWANCE OF EXPORT PROMOTION EXPENSES... .RS.2,79,113/- & (IV) DISALLOWANCE OUT OF TOUR & TRAVEL EXPENSES... ...RS.1,34,642/-. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS). SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE APPEAL OF T HE ASSESSEE FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE IN LIMINI VIDE HIS APPELLATE ORDER PASSED EX PARTE, WHICH IS IMPUGNED BY THE ASSESSEE IN THE PRESENT APPEAL FILE D BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, WRITTEN SUBMISSIONS TO BE FILED BEFOR E THE LD. CIT(APPEALS) WERE DULY PREPARED BY THE ASSESSEE BUT THE CASE OF THE ASESSEE COULD NOT BE PRESENTED AND THE WRITTEN SUBMISSIONS COULD NOT BE FILED BEFORE THE LD. CIT(APPEALS) AS THE ACCOUNTANT OF THE ASSESSEE SUDD ENLY FELL ILL ON THE LAST DATE OF HEARING FIXED BY THE LD. CIT(APPEALS) ON 19.08.2015. AS FURTHER SUBMITTED BY HIM, THE LD. CIT(APPEALS) IN A NY CASE OUGHT TO HAVE DISPOSED OF THE APPEAL OF THE ASSESSEE ON MERIT AND HE WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE ON ACCOUNT OF NON- PROSECUTION WITHOUT GOING INTO THE MERIT OF THE CAS E. IN THIS REGARD, HE HAS REFERRED TO THE PROVISIONS OF SUB-SECTION (6) O F SECTION 250, WHEREBY THE LD. CIT(APPEALS) IS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE BY AN ORDER PASSED IN WRITING STATING THEREIN THE P OINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. KEEPING IN VIEW THIS SPECIFIC PROVISION CONTAINED I N SUB-SECTION (6) OF SECTION 250, WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) I.T.A. NO. 1252/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 3 OF 3 DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE FOR WANT OF PROSECUTION WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED THEREIN IS NOT IN ACCORDANCE WITH LAW. I, THEREFORE, SET ASIDE THE SA ID ORDER AND REMIT THE MATTER BACK TO THE LD. CIT(APPEALS) FOR DECIDING TH E APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFT ER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 05, 20 16. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 5 TH DAY OF AUGUST, 2016 COPIES TO : (1) TOPTANS, C/O. D.J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-32, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKAT A; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.