M/s Komal Sood Creations, Kolkata V. JCIT, Range-58, TDS, Kolkata

ITA 1446/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1458 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 08-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHERJEE
• Assessee Lawyers: MONOJ KATARUKA
• 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. 1446 / KOL / 20 16 ASSESSMENT YEAR :2010-11 M/S KOMAL SOOD CREATIONS, 43, PARK MANSIONS, PARK STREET, KOLKATA-16 [ PAN NO.CALKO 5896 C ] V/S . JCIT, RANGE-58 (TDS), 10B,MIDDLETON ROW, 8 TH FLOOR, KOLKATA-71 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MONOJ KATARUKA, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 05-02-2018 /DATE OF PRONOUNCEMENT 21-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-24, KOLKATA DA TED 23.05.2016. PENALTY LEVIED BY JCIT, (TDS), RANGE-58 KOLKATA U/S 272A(K)/274 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 22.02.2012 FOR ASSESSMENT YEAR 2010-11. SHRI MANOJ KATARUKA, LD. ADVOCATE APPEARED ON BEHAL F OF ASSESSEE AND SHRI ARINDM BHATTACHERJEE, LD. DEPARTMENTAL REPRESENTATI VE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT( A) DECIDED THE APPEAL EX PARTE VIDE ORDER DATED 23.05.2016 DUE TO NON-APPEARANCE OF THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. ITA NO.1446/KOL/2016 A.Y. 2010-11 M/S KOMAL SOOD CREATIONS VS. JCIT, R G-58 (TDS), KOL. PAGE 2 CIT(A) ASSESSEE FILED AN APPEAL BEFORE US AND PLEAD ED THAT THE IMPUGNED ORDER BY THE LD. CIT(A) HAS BEEN PASSED WITHOUT GIV ING OPPORTUNITY TO THE ASSESSEE. THE LD. AR BEFORE US PRAYED TO RESTORE TH E MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH TH E LAW. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS REMANDED TO THE LD. CIT-A FOR FRESH ADJUDICATION AS PER THE PRO VISION OF LAW. 3. HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT WAS OBSERVED THAT THE ASSESSEE FILED ADJOURNMENT PE TITION SEEKING TIME FOR 10 DAYS VIDE LETTER DATED 19.5.2016 BUT THE LD. CIT(A) WITHOUT CONSIDERING THE SAME DECIDED THE ISSUE VIDE ORDER DATED 23.05.2016. THE COPY OF THE ADJOURNMENT PETITION IS ENCLOSED ON PAGE 22 OF THE PAPER BOOK WHICH READS AS UNDER:- 19.05.2016 TO: THE COMMISSIONER OF INCOME TAX (APPEALS)-24 3 RD FLOOR, ROOM NO.61 AAYAKAR BHAWAN P-7, CHOWRINGHEE SQUARE KOLKATA- 70 069 DEAR, SIR, RE; M/S KOMAL SOOD CREATIONS 43, PARK MANSION PARK STR EET, KOLKATA-700016 IT APPEAL NO.112 FOR THE ASST. YR. 2010-11 SUB: REQUEST FOR ADJOURNMENT OF APPEAL FOR THE ASSESSMENT YEAR 2010-11 IN THE CASE OF THE ABOVE MENTIONED ASSESSEE, FIXING COMPLIANCE ON 19 TH OF MAY, 2016, IT IS TO BE SUBMITTED THAT SINCE THE AUTHORIS ED REPRESENTATIVE IS OUT OF STATION AND WOULD RETURN BACK AFTER 10 DAYS, IT WOULD NOT B E POSSIBLE FOR HIM TO ATTEND TO THE SAME. IN THE CIRCUMSTANCES, IT IS REQUESTED THAT REASONAB LE OPPORTUNITY BE GIVEN TO THE ASSESSEE FOR MAKING REPLY AND ACCORDINGLY THE HEARI NG MAY KINDLY BE ADJOURNED BY 10 DAYS. THANKING YOU, YOURS FAITHFULLY, SD/-ILLEGIBLE FOR, MANOJ KATARUKA (AUTHORISED ADVOCATE) IN VIEW OF ABOVE, WE NOTE THAT THE APPEAL HAS BEEN DECIDED BY THE LD. CIT(A) QUA THE ASSESSEE WITHOUT CONSIDERING THE REQUEST MADE BY THE ASSESSEE VIDE LETTER DATED 19.5.2016. THUS, IN SUCH CIRCUMSTANCES WE FIND THAT THE LD. CIT(A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRINCIPLE OF AUDI ITA NO.1446/KOL/2016 A.Y. 2010-11 M/S KOMAL SOOD CREATIONS VS. JCIT, R G-58 (TDS), KOL. PAGE 3 ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRE SSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNIT Y TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT T O REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESEN TATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHE R 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 CO URT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA , WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING AN Y 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 GIV EN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUS T BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. T HEREFORE, 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 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. 4. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS 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 ITA NO.1446/KOL/2016 A.Y. 2010-11 M/S KOMAL SOOD CREATIONS VS. JCIT, R G-58 (TDS), KOL. PAGE 4 / COPY OF ORDER FORWARDED TO:- 1 . /APPELLANT-M/S KOMAL SOOD CREATIONS, 443, PARK MANS IONS, PARK ST. KOL.16 2. /RESPONDENT-JCIT, RANGE-58 (TDS), 10B, MIDDLETON RO W, 8 TH FLOOR,KOLKATA-71 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,