Janaki Suppliers Pvt. Ltd., , Kolkata V. ITO, Ward - 13(2), Kolkata , Kolkata

ITA 1321/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4770 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 14-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

1 ITA NO.1321/KOL/2018 JANAKI SUPPLIER S PVT. LTD, AY- 2012-13 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 1321/KOL/2018 ASSESSMENT YEAR: 2012-13 JANAKI SUPPLIERS PVT. LTD. (PAN: AACCJ3921C) VS. INCOME-TAX OFFICER, WD. 13(2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 07.02.2019 DATE OF PRONOUNCEMENT 15.02.2019 FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT SHRI SHANKAR HALDER, JCIT, SR. D R ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-5, KOLKATA DATED 26.10.2016 FOR AY 2012-13. 2. AT THE OUTSET, LD. AR OF THE ASSESSEE DREW OU R ATTENTION TO THE FACT THAT THE ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER BECAU SE NOTICE WAS NOT ADDRESSED PROPERLY SO THE NOTICE HAD RETURNED BACK TO THE LD. CIT(A)S OF FICE. IT WAS ALSO BROUGHT TO OUR NOTICE THAT THE AO HAS ALSO PASSED THE EX PARTE ASSESSMENT ORDER U/S. 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR THE SAME REASON THAT NOTICES WERE NOT SERVED ON THE ASSESSEE. THEREFORE, ACCORDING TO LD. AR, N O PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE BEFORE THE AO WHILE ASSESSMENT WAS FRAMED. THE LD. DR OPPOSED ANY REMANDING BACK TO EITHER OF THE AUTHORITIES BELOW. ACCORDING TO HIM, THE ASSESSEE SHOULD HAVE BEEN VIGILANT AND THE LAW DOES NOT HELP THE PERSON WHO S LEEPS OVER HIS RIGHTS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROU GH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ORDER OF THE LD. CIT(A) IS AN EX PARTE ORDER AND HE HAS ACKNOWLEDGED THAT THE NOTICE FIXING THE DATE OF HE ARING HAS RETURNED BACK BY THE POSTAL AUTHORITIES. THUS, WE NOTE THAT THE ASSESSEE HAS N OT BEEN PUT ON NOTICE BEFORE THE IMPUGNED ORDER HAS BEEN PASSED. WE ALSO NOTE THAT THE AO HA S PASSED THE ORDER U/S. 144 OF THE BEST 2 ITA NO.1321/KOL/2018 JANAKI SUPPLIER S PVT. LTD, AY- 2012-13 JUDGMENT ASSESSMENT AND THE LD. AR POINTED OUT THAT NO NOTICES WERE SERVED UPON THE ASSESSEE SO THE ASSESSEE COULD NOT EFFECTIVELY PART ICIPATE DURING THE ASSESSMENT PROCEEDINGS. IN THE AFORESAID CIRCUMSTANCES, WE ARE OF THE OPINI ON THAT SINCE THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO, THE ASSESSEE SHOU LD BE GIVEN AN OPPORTUNITY BEFORE THE AO TO PLACE ITS CASE. HENCE, WE SET ASIDE THE ORDE RS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF AO TO ADJUDICATE AFRESH AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THIS REGARD WE REL Y ON THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX COMPANY VS. CIT (2001 ) 249 ITR 216 (SC), WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15TH FEBR UARY, 2019 SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 15TH FEBRUARY, 2019 JD.(SR.P.S.) 3 ITA NO.1321/KOL/2018 JANAKI SUPPLIER S PVT. LTD, AY- 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT JANAKI SUPPLIERS PVT. LTD., DIAMOND PRESTIGE, ROOM NO. 310, 41A, A.J.C. BOSE ROAD, KOLKATA-700 017. 2 RESPONDENT ITO, WARD-13(2), KOLKATA. 3. 4. CIT(A)-5, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR