The Tinplate Company of India Ltd., Kolkata V. DCIT, Circle-3(1), Kolkata, Kolkata

ITA 1435/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1452 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Assessee Lawyers: KAPIL BASU; AMIT KUMAR LAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1434 - 1435 / KOL / 20 16 ASSESSMENT YEARS :2002-03 & 2005-06 THE TINPLATE COMPANY OF INDIA LTD., 4, BANKSHALL STREET, KOLKATA-700 001 [ PAN NO. AABCT 0129 P ] V/S . DCIT, CIRCLE-3(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI KAPIL BASU, AR & SHRI AMIT KUMAR LAL, AR /BY REVENUE SHRI A.K. TIWARI, CIT-DR /DATE OF HEARING 05-02-2018 /DATE OF PRONOUNCEMENT 21-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-1, K OLKATA OF EVEN DATE I.E. DATED 11.05.2016. ASSESSMENTS WERE FRAMED BY ACIT,C IRCLE-3, KOLKATA U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE THEIR ORDER DATED 18.12.2006 & 13.12.2007 FOR ASSESSMENT YEARS 2002-03 & 2005-06 RESPECTIVELY. BOTH APPEALS ARE HEARD TOGE THER AND ARE BEING DISPOSE OFF BY WAY OF CONSOLIDATE FOR THE SAKE OF C ONVENIENCE AND BREVITY. SHRI KAPIL BASU & SHRI AAMIT KUMAR LAL, LD. AUTHORI ZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE AND SHRI A.K. TIWARI , LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. FIRST WE TAKE UP ITA NO.1434/KOL/2016 FOR A.Y.20 02-03. ITA NO.1434-35/KOL/2016 A.YS. 02-0 3 & 05-06 THE TINPLATE CO. OF INDIA LTD. VS. DCIT, CIR-3 (1), KOL. PAGE 2 3. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT( A) DECIDED THE APPEAL EX PARTE VIDE ORDER DATED 11.05.2016 DUE TO NON-APPEARANCE OF THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) NOW ASSESSEE FILED AN APPEAL BEFORE US AND P LEADED THAT THE IMPUGNED ORDER BY THE LD. CIT(A) HAS BEEN PASSED WI THOUT GIVING OPPORTUNITY OF BEING HEARD TO ASSESSEE AS WELL AS WITHOUT CONSI DERING THE WRITTEN SUBMISSION FILED BY THE ASSESSEE BEFORE LD. CIT(A). THE LD. AR ALSO SUBMITTED THAT ADJOURNMENT PETITION WAS ALSO FILED VIDE LETTE R DATED 10-5-2016 WHICH WAS DULY ACKNOWLEDGED BY THE OFFICE OF THE LD. CIT(A). BUT THE SAME WAS NOT CONSIDERED. ACCORDINGLY THE LD. AR BEFORE US PRAYED TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN AC CORDANCE WITH THE LAW. ON THE OTHER HAND THE LD. DR PRESENT WAS DULY HEARD . HE FAIRLY SUBMITTED THAT THE MATTERS NEEDS TO BE RESTORED BACK TO THE FILE O F LD. CIT(A) FOR FRESH CONSIDERATION AS PER THE PROVISION OF LAW. 4. HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT WAS OBSERVED THAT THE ASSESSEE HAS FILED WRITTEN SU BMISSION BEFORE THE LD. CIT-A AS EVIDENT FROM THE PAPER BOOK FILED BEFORE U S. SIMILARLY THE ADJOURNMENT PETITION SEEKING TIME FOR COUPLE OF DAY S 10 DAYS WAS ALSO FILED VIDE LETTER DATED 10.5.2016 BUT THE LD. CIT(A) WIT HOUT CONSIDERING THE SAME DISMISSED THE APPEAL. THE COPY OF THE ADJOURNMENT PETITION IS ENCLOSED ON PAGE 1 OF THE PAPER BOOK WHICH READS AS UNDER:- PWC 10 TH MAY, 2016 THE COMMISSIONER OF INCOME TAX (APPEALS)-1 7 TH FLOOR, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE KOLKATA-700 069 DEAR SIR, THE TINPLATE COMPANY OF INDIA LIMITED PAN:AABCT0129P APPEAL NO.194/CIT(A)-1/C-3/2007-08 INCOME TAX ASSESSMENT YEAR 2002-03 WE WRITE WITH REFERENCE TO THE CAPTIONED APPEAL HEA RING FIXED BEFORE YOUR KINDSELF TODAY. ITA NO.1434-35/KOL/2016 A.YS. 02-0 3 & 05-06 THE TINPLATE CO. OF INDIA LTD. VS. DCIT, CIR-3 (1), KOL. PAGE 3 IN THIS CONNECTION, IT IS HUMBLY SUBMITTED THAT THE AUTHORIZED REPRESENTATIVE WHO IS CONVERSANT AND DEALING WITH T HE MATTER AND WHO IS TO REPRESENT THE CASE BEFORE YOUR KINDSELF IS NO T ATTENDING OFFICE DUE TO SOME EXIGENCIES. UNDER THE COMPELLING CIRCUMSTAN CES, IT IS MOST HUMBLY REQUEST THAT THE HEARING FIXED TODAY MAY KIN DLY BE ADJOURNED AND RE-FIXED AFTER A COUPLE OF DAYS ON A LATER DATE CONVENIENT TO LEARNED CIT (APPEALS). MEANWHILE, WE ENCLOSE HEREWITH OUR SUBMISSIONS ALON G WITH ANNEXURE, WHICH MAY KINDLY BE READ IN CONJUNCTION WITH STATEM ENT OF FACTS FILED ALONG WITH MEMORANDUM OF APPEAL AND IS REQUESTED TO BE REFERRED IN THE SUBJECT APPEAL MATTER. TRUST YOUR KINDSELF WILL ACCEDE TO THE AFORESAID RE QUEST. YOURS FAITHFULLY, SD/ SAURABH PANDEY SAURABH PANDEY (AUTHORISED REPRESENTATIVE) IN VIEW ABOVE WE NOTE THAT THE APPEAL HAS BEEN BY T HE LD. CIT(A) WITHOUT CONSIDERING THE REQUEST MADE BY THE ASSESSEE VIDE L ETTER DATED 10.5.2016. WE FIND THAT THE LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA , WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSAR Y BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASS ESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CA SE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) FOR RECONSIDERATION ALL GROU NDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WIT H LAW. NEVERTHELESS, TO ITA NO.1434-35/KOL/2016 A.YS. 02-0 3 & 05-06 THE TINPLATE CO. OF INDIA LTD. VS. DCIT, CIR-3 (1), KOL. PAGE 4 MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APP EAL PROCEEDINGS AND ITS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED AD DITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALL OWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. COMING TO ITA NO.1435/KOL/2016 FOR A.Y. 2005-06. 6. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH THE PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.143 4/KOL/2016) MAY BE TAKEN IN THIS APPEAL ALSO, WE HOLD ACCORDINGLY. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN COMBINE RESULT, FOR STATISTICAL PURPOSE, BOTH AP PEAL OF ASSESSEE ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 21/ 02/2018 SD/- SD/- (' ) ( ) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S )- 21 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-THE TINPLATE CO. OF INDIA LTD., 4, BANKSH ALL STREET, KOLKATA-01 2. /REVENUE-DCIT, CIRCLE-3(1), AAYAKAR BHAWAN, P-7, CH OWRINGHEE SQ. KOLKATA-69 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ''4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 4,