M/s. Roadlines Corporation Pvt. Ltd., Kolkata V. DCIT, Circle -10, Kolkata, Kolkata

ITA 1450/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9581 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 08-07-2016
• Court: TRIBUNAL
• Department Lawyers: S M SARFARASUT TAUHEED
• Keywords: Onus to prove

Judgement Text

1 ITA NO.1450/KOL/2016 M/S. ROADLINES CORPORATION PVT . LTD., A.Y.2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI A.T.VARKEY, JM & DR.ARJUN LA L SAINI, AM ] ITA NO.1450/KOL/2016 ASSESSMENT YEAR : 2004-05 M/S. ROADLINES CORPORATION PVT.LTD. -VERSUS- D.C.I .T., CIRCLE-10, KOLKATA KOLKATA (PAN:AACFCR 3278 C) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI AKKAL DUDHWEWALA, FCA FOR THE RESPONDENT: SHRI S.M.SARFARASUT TAUHEED, JC IT. DATE OF HEARING : 29.12.2016. DATE OF PRONOUNCEMENT : 06 . 01.2017. ORDER PER A.T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 29.02.2016 OF CIT(A)-10, KOLKATA RELATING TO A.Y.2004-05. 2. AT THE OUTSET ITSELF, THE LD. AR TOOK OUR ATT ENTION TO GROUND NO.1 TO POINT OUT THAT THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LD. C IT(A) FOR NOT GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE DECIDING THE MAT TER. WE NOTE THAT THIS IS AN EXPARTE ORDER. THE LD. COUNSEL FOR THE ASSESSEE PLEADS THAT SINCE THE APPEAL HAS NOT BEEN DECIDED ON MERITS THE ASSESSEE SHOULD BE GIVEN AN O PPORTUNITY TO PLEAD ITS CASE PROPERLY BEFORE THE LD. CIT(A) AND THE MATTER NEED TO BE DECIDED ON MERIT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RECORDS. WE NOTE THAT THE MATTER WAS LISTED FOR HEARING ON 22.02.2016 AND THE LD. CI T(A) NOTES THAT SINCE NONE APPEARED TAKING NOTE OF THE CBDT LETTER WHEREIN THE BOARD HAS DIRECTED THAT ALL APPEALS WHICH ARE FIVE YEAR OLD NEED TO BE DISPOSED OFF EXPEDITIOUSLY, THE LD. CIT(A) WENT AHEAD TO DISPOSE OFF THE APPEAL BY HOLDING AS UNDER :- 05. I HAVE EXAMINED THE GROUNDS OF APPEAL VIS- A-VIS THE ASSESSMENT ORDER WHEREIN I FIND THAT DURING THE STAGE OF ASSESSMENT, THE APPEL LANT HAS CERTAIN EXPLANATIONS WHICH HAVE BEEN CONSIDERED BY THE AO AND THEREAFTER THE D ISALLOWANCES HAVE BEEN MADE, 2 ITA NO.1450/KOL/2016 M/S. ROADLINES CORPORATION PVT . LTD., A.Y.2004-05 MOSTLY ON GROUNDS AS THE EXPENDITURES CLAIMED WERE NOT VERIFIABLE FULLY. NO NEW FACTS OR ARGUMENTS ARE AVAILABLE IN THE APPELLATE FORUM T O COUNTER THE FINDINGS OF THE AO, ON ACCOUNT OF NON- COMPLIANCE OF THE APPELLANT. THE AP PELLANT IS REQUIRED TO RESPOND TO THE NOTICES ISSUED ON DIFFERENT DATES AS PER RECORD, AN D EXPLAIN THE MATTER, AS UNDOUBTEDLY THE ONUS TO PROVE THE CLAIMS, AS MADE IN THE GROUND S OF APPEAL, RESTS UPON THE APPELLANT. 4. WE NOTE THAT THE ASSESSEE HAS CHALLENGED THE VALIDITY OF RE-OPENING U/S 147/148 OF THE ACT AND THEREAFTER CHALLENGED CERTAIN DISALLOWA NCES MADE BY THE AO. IT SHOULD BE REMEMBERED THAT THE STATUTORY RIGHT OF THE ASSESSEE TO FILE AN APPEAL BEFORE THE CIT(A) WILL BE FRUSTRATED AND MEANINGLESS, IF NATURAL JUST ICE IS VIOLATED DURING THE HEARING OF THE APPEAL AND EX-PARTE ORDER IS PASSED. THE LD. CI T(A) NOTES THAT THE ITNS WAS ISSUED TO THE AO ON 22.02.2016 AND THE ASSESSEE WAS SERVED THE NOTICE ON 15.02.2016 FIXING THE MATTER ON 22.02.2016. THOUGH THE APPEAL SEEMS T O BE INSTITUTED IN 2010 THE APPEAL WAS LISTED FOR THE FIRST TIME ON 22.02.2016. IT IS NO FAULT OF THE ASSESSEE THAT THE MATTER HAS NOT BEEN LISTED FOR THE FIRST TIME IN 2016. SO JUST BY RECORDING THAT THE ASSESSEE HAS RECEIVED THE NOTICE AND FOR WHATEVER REASON COULD N OT APPEAR DISPOSED OFF THE PETITION WITHOUT HEARING THE AR/ASSESSEE. IN THE LIGHT OF TH E SAID FACTS WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A) OUGHT TO HAVE GIVEN SUF FICIENT OPPORTUNITY TO THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND OUGHT TO HAVE DECIDED THE MATTER ON MERITS. THEREFORE WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF CIT(A) WITH THE DIRECTIO N THAT AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE THE APPEAL TO BE DECIDE D ON MERITS BY PASSING A SPEAKING ORDER. THE ASSESSEE IS ALSO DIRECTED TO PROMPTLY AP PEAR AND PLEAD ITS CASE BEFORE THE LD. CIT(A) WITH THE AFORESAID DIRECTION THE APPEAL IS D ISPOSED OFF. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 06.01.2017. SD/- SD/- [DR.A.L.SAINI] [ A.T.VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06.01.2017. [RG PS] 3 ITA NO.1450/KOL/2016 M/S. ROADLINES CORPORATION PVT . LTD., A.Y.2004-05 COPY OF THE ORDER FORWARDED TO: 1.M/S. ROADLINES CORPORATION PVT. LTD., CF-216, SEC TOR-1, SALT LAKE CITY, KOLKATA- 700064, WEST BENGAL. 2.D.C.I.T., CIRCLE-10, KOLKATA. 3. CIT(A)-10, KOLKATA. 4. CIT-4, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES