BCT Infrastructure LLP, Kolkata V. I.T.O.,Ward-28(1), Kolkata

ITA 1263/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2116 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-11-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 24-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANUA
• Assessee Lawyers: RAM RATAN MODI
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 154

Judgement Text

1 ITA NO. 1263/KOL/2019 BCT INFRASTRUCTURE LLP, AY- 2 012-13 , B(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL B(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] ITA NO.1263/KOL/2019 ASSESSMENT YEAR: 2012-13 BCT INFRASTRUCTURE LLP (PAN: AAJFB9971A) VS. INCOME-TAX OFFICER, WD-28(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 25.11.2019 DATE OF PRONOUNCEMENT 06 .12.2019 FOR THE APPELLANT SHRI RAM RATAN MODI, FCA FOR THE RESPONDENT SHRI JAYANTA KHANUA, JCIT, SR. D R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-12, KOLKATA DATED 06-07-2018 FOR THE ASSESSMENT YEAR 2012-13. 2. AT THE OUTSET ITSELF, IT IS NOTED THAT THERE IS A DELAY OF 215 DAYS. IN ORDER TO EXPLAIN THE DELAY THE ASSESSEE HAD FILED A CONDONATION PETI TION AS WELL AS AN AFFIDAVIT EXPLAINING THE CAUSE OF DELAY. ACCORDING TO LD. AR, THE LD. CIT(A) HAS DISMISSED THE APPEAL ON THE PRETEXT THAT ASSESSEE/LD. AR WAS NOT PRESENT BEFORE HIM ON 29.06.2018. ACCORDING TO LD. AR, THIS VERY BASIS FOR DISMISSAL OF APPEAL WITHOUT GOING INTO MERITS OF THE APPEAL IS ERRONEOUS. THE LD. AR SUBMITTED THAT HE HIMSELF WAS PRESENT ON THE LAST DATE OF HEARING BEFORE THE LD. CIT(A) WHO NOT ONLY HEARD ANY APPEAL S LISTED ON THAT DAY, BUT A STAFF OF HIS OFFICE INFORMED HIM THAT ALL THE CASES LISTED ON TH AT DAY ARE BEING ADJOURNED AND THE NEXT DATE OF HEARING WOULD BE INFORMED BY WAY OF A NOTIC E. HOWEVER, TO THE UTTER ASTONISHMENT OF THE ASSESSEE, THE LD. CIT(A) PASSED AN EX PARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE. SINCE THE EX PARTE ORDER ITSELF WAS ERRO NEOUS AND SINCE LD. AR WAS PRESENT ON THE LAST DATE OF HEARING AS DISCUSSED (SUPRA) THE ASSES SEE FILED A PETITION UNDER SEC. 154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) FOR RECALLING THE EX PARTE ORDER AND AWAITED THE OUTCOME OF THIS SECTION 154 PETITIO N BY THE LD. CIT(A). AND REALIZING THAT LD. CIT(A) IS NOT BOTHERED TO DISPOSE OF THE SECTIO N 154 APPLICATION, THEN THE ASSESSEE PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. SINCE NO ACTION WAS TAKEN BY THE LD. CIT(A) IN THE APPLICATION U/S. 154 OF THE ACT, THEREFORE, THE RE WAS A DELAY OF 214 DAYS IN FILING THIS 2 ITA NO. 1263/KOL/2019 BCT INFRASTRUCTURE LLP, AY- 2 012-13 APPEAL BEFORE THE TRIBUNAL WHICH WAS NOT INTENTIONA L. IT IS NOTED THAT AN AFFIDAVIT HAS BEEN FILED EXPLAINING THE AFORESAID REASONS AND TAKING N OTE OF THE SUBMISSION OF THE LD. AR BEFORE THE BENCH, I FOR THE REASONS STATED ABOVE IS OF THE OPINION THAT THERE WAS A REASONABLE CAUSE FOR NON-FILING OF THE APPEAL IN TIME, THEREFO RE, I AM INCLINED TO CONDONE THE DELAY AND ADMIT THE APPEAL OF THE ASSESSEE. 3. FROM THE AFORESAID AVERMENTS IT IS CLEAR THAT TH E LD. CIT(A) HAS PASSED AN EX PARTE ORDER EVEN THOUGH THE LD. AR WAS PRESENT IN HIS OFF ICE ON THE LAST DATE OF HEARING I.E. ON 29.06.2018. HOWEVER, THE LD. CIT(A) HAS DISMISSED THE APPEAL OF ASSESSEE ON ERRONEOUS PREMISES THAT NO ONE REPRESENTED THE ASSESSEE DURIN G THE APPELLATE PROCEEDINGS. THE AFORESAID ACTION OF THE LD. CIT(A) IS IN VIOLATION OF NATURAL JUSTICE AND, THEREFORE, IT HAS TO BE SET ASIDE AND I DO SO AND REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION OF APPEAL AND DIRECT HIM TO ADJUDICATE ON MERITS THE APPEAL AFTER HEARING THE ASSESSEE IN ACCORDANCE TO LAW. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 6TH DECEMB ER, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED :6 TH DECEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT BCT INFRASTRUCTURE LLP, 21A, CHARU C HANDRA AVENUE, GROUND FLOOR, KOLKATA-700 033. 2 RESPONDENT ITO, WARD-28(1) , KOLKATA. 3. 4. 5. CIT(A)-12, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR