Sohail Azhar, Kolkata V. ACIT, Circle - 32, Kolkata, Kolkata

ITA 1386/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62125 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 17-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK THIS IS A
• Assessee Lawyers: D CH AKRABORTI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SMT. DIVA SINGH, HONBLE JUDICIAL MEMBER ] I.T.A. NO.1386/KOL/2011 ASSESSMENT YEAR :2006-07 SOHAIL AZHAR VS- ACIT, CIRCLE-32, KOLKATA 2, ELLIOT ROAD, KOLKATA 700 016 (PAN:ACMPA 3994M) ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 03.07.2012 DATE OF PRONOUNCING THE ORDER : 03.07.2012 APPEARANCES : FOR THE APPELLANT : SHRI D. CH AKRABORTI : FOR THE RESPONDENT : SHRI A.K.PRAMANICK O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 25.07.2011 OF COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA P ERTAINING TO THE ASSESSMENT YEAR 2006-07, WHEREIN VARIOUS GROUNDS HA VE BEEN RAISED BY THE ASSESSEE CHALLENGING THE ADDITIONS ON MERIT. HOWEVE R, AT THE TIME OF HEARING, ARGUMENTS WERE ADDRESSED ON GROUND NOS. 1 AND 2, WH ICH READ AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ASSESSEE HAS REASONS TO BELIEVE THAT NO NOTICE UNDER SECTION 14 3(2) OF THE I.T. ACT, 1961 WAS DULY SERVED WITHIN THE SPECIFIED PERIOD AS PRO VIDED IN THAT SECTION AND FOR THAT THE IMPUGNED ASSESSMENT IS THOROUGHLY ILL EGAL IN THE INSTANT CASE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) COMPLETELY IG NORED THE MATERIAL FACT THAT THE ASSESSMENT COULD NOT MAKE OUT AND FILE BE FORE HIM THE REQUISITE WRITTEN SUBMISSION FOR WANT OF CERTIFIED COPIES OF CERTAIN RECORDS AND DOCUMENTS NOT GRANTED BY THE LD. ASSESSING OFFICER IN SPITE OF REPEATED REQUESTS TO THIS EFFECT AND WHEREBY THE ASSESSEE W AS DENIED ALL REASONABLE OPPORTUNITIES OF HEARING BEFORE THE LD. C.I.T.(A) IN THE INSTANT CASE AND FOR THAT THE IMPUGNED APPELLATE ORDER IS WHOLLY ARBITR ARY ERRONEOUS AND BAD IN LAW. 2 ITA NO.1386/KOL/2011 SOHAIL AZHAR ASSESSMENT YEAR: 2006-07 2. IN THE CONTEXT OF THE GROUNDS RAISED, IT WAS SU BMITTED BY THE LD. A.R. THAT IT WAS SPECIFICALLY BROUGHT TO THE NOTICE OF THE CIT(A ) THAT THE ASSESSEE HAD BEEN SEEKING CERTIFIED COPIES OF THE ALLEGED NOTICE ISSU ED UNDER SECTION 143(2) TOGETHER WITH THE RELEVANT ACKNOWLEDGEMENT FOR WHICH VARIOUS APPLICATIONS WERE MOVED. ATTENTION WAS INVITED TO APPLICATIONS DATED 09.02.2 009, 07.12.2009 AND 21.11.2011 PLACED AT PAGES 16,18 AND 15 OF THE PAPE R BOOK ON WHICH THE CIT(A) HAD ALLOWED VARIOUS OPPORTUNITIES TO THE ASSESSEE. REFERRING TO THE IMPUGNED ORDER, IT WAS SUBMITTED BY THE LD. A.R. THAT IT WAS SPECIFICALLY URGED BEFORE THE CIT(A) THAT AS THE AO HAS NOT GIVEN THE COPIES OF T HE DOCUMENTS, ACCORDINGLY, WRITTEN SUBMISSIONS COULD NOT BE FILED. HOWEVER, IT WAS URGED THAT ON THE LAST DATE OF HEARING I.E. ON 25.07.2011, THE ADJOURNMENT PETI TION, MOVED ON THE GROUND THAT THE LD. A.R. HAD GONE OUT OF STATION DULY SUPPORTED BY COPY OF THE RAILWAY TICKETS, WAS REJECTED AND THE ADDITIONS MADE BY THE AO WERE CONFIRMED. THE LD. A.R., INVITING THE ATTENTION TO GROUND NO.1, SUBMITTED TH AT NOTICE UNDER SECTION 143(2) HAD NOT BEEN SERVED WITHIN THE SPECIFIED TIME AS PE R THE REQUIREMENT OF THE ACT, WHICH ACTION IS CONTRARY TO THE PRINCIPLES SET OUT IN THE JUDGEMENTS OF VARIOUS COURTS AND TRIBUNAL. ATTENTION WAS INVITED TO CIT-V S- CPR CAPITAL SERVICES LTD. REPORTED IN 330 ITR 43(DELHI) AND ACIT & ANR. VS- HOTEL BLUE MOON REPORTED IN 321 ITR 362 (SC) AND VARIOUS OTHER ORDERS OF THE TRIBUNAL. 3. LOOKING TO THE GROUND RAISED BEFORE THE CIT(A), WHEREIN THE ASSESSEE HAD CHALLENGED THE ACTION OF THE AO ON THE GROUND OF BE ING ARBITRARY AND ERRONEOUS WITHOUT SPECIFICALLY LAYING DOWN AS TO WHAT WAS THE ERROR OR ARBITRARY ACTION AND TAKING NOTE OF THE FACT THAT THE SPECIFIC GROUND WA S NOT BEFORE THE CIT(A), IT IS CONSIDERED APPROPRIATE AFTER HEARING THE PARTIES TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION THAT TO DECIDE THE APPEAL AFTER HEARING THE 3 ITA NO.1386/KOL/2011 SOHAIL AZHAR ASSESSMENT YEAR: 2006-07 ASSESSEE, NO AUTHORITY IS REQUIRED TO BE CITED TO A DDRESS THE COMMON LAW PRINCIPLE THAT HEARING WITHOUT RELEVANT DOCUMENTS IS MEANINGL ESS IN THE EYES OF LAW. ACCORDINGLY, IT IS DIRECTED THAT THE RELEVANT DOCUM ENTS SHALL BE DULY PROVIDED TO THE ASSESSEE FORTHWITH AND THE SAME SHALL BE TAKEN INTO CONSIDERATION FOR DECIDING THE ISSUES. 4. IN TERMS OF THE ABOVE DIRECTION, THE ISSUE IS RE STORED TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE IN ACCORDANC E WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 RD JULY, 2012 IMMEDIATELY AFTER THE COMPLETION OF THE HEARING THE ISSUE REST ORED TO THE CIT(A). PRONOUNCED. SPEAKING ORDER TO FOLLOW. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 3 RD JULY, 2012 COPY OF THE ORDER FORWARDED TO: 1. SOHAIL AZHAR, 2, ELLIOT ROAD, KOLKATA 700 016 2 ACIT, CIRCLE-32, KOLKATA 3. THE CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.) 4 ITA NO.1386/KOL/2011 SOHAIL AZHAR ASSESSMENT YEAR: 2006-07