Britannia Industries Limited , Kolkata V. JCIT (TDS), Kolkata , Kolkata

ITA 1351/KOL/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4001 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 07-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: D S DAMLE
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A.L. SAINI, AM ITA NO.1351/KOL/2017 (ASSESSMENT YEAR: 2007-08) BRITANNIA INDUSTRIES LTD. C/O. PRAMOD KUMAR SARAF, ADVOCATE, 238B, A.J.C. BOSE ROAD, 1 ST FLOOR, KOLKATA 700 020. VS. JCIT(TDS), KOLKATA 10B, MIDDLETON ROW, KOLKATA 700 071. ./ ./PAN/GIR NO. : AABCB 2066 P ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI D. S. DAMLE, FCA REVENUE BY : SHRI A. BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 12/07/2018 /DATE OF PRONOUNCEMENT: 05/10/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2007-08 IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA IN APPEAL NO.1636/CIT(A)-24/KOL/15-16 DATED 31.03.2017 WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 271C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. ITA NO.1351/KOL/2017 BRITANNIA INDUSTRIES LTD. ASSESSMENT YEAR: 2007-08 2 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER STATING THE FOLLOWING: 3. THE PRESENT APPEAL IS AGAINST THE ORDER U/S 271C PASSED BY THE ASSESSING OFFICER. I HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND THE ORDER OF THE A.O. THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION OR SUBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED BY IT DESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. MERELY RAISING OF GROUNDS ALONE WITHOUT SUPPORTING CANNOT BE THE BASIS FOR CLAIMING RELIEF. 5. IN THE INSTANT CASE THE APPELLANT IS NOT ABLE TO SHOW THAT THE DECISION OF THE ASSESSING OFFICER WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BASIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. 6. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS DISMISSED, BY NOT ALLOWING ANY GROUNDS OF APPEAL. 4. WE NOTE THAT THE ASSESSEE HAS RAISED GROUND NO.1 & 2 STATING AS FOLLOWS: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS UNJUSTIFIED ON FACTS AND IN LAW IN DISMISSING THE APPEAL EX-PARTE, WITHOUT ADJUDICATING THE APPEAL ON MERITS. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) SHOULD NOT HAVE DISMISSED THE APPEAL WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 5. WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . WE NOTE THAT LD CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND FINDINGS OF LD ASSESSING OFFICER TO DECIDE THE VARIOUS ISSUES ON MERITS. THEREFORE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT(A). 6. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEED IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ITA NO.1351/KOL/2017 BRITANNIA INDUSTRIES LTD. ASSESSMENT YEAR: 2007-08 3 ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/10/2018. SD/- (S. S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:05/10/2018 RS, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- BRITANNIA INDUSTRIES LTD. 2. / THE RESPONDENT.- JCIT(TDS), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .