Ramesh Ramasundar, Kolkata V. I.T.O.,Ward-63(3), Kolkata

ITA 147/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6283 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2019
• Assessment Year: 2015-2016
• Appeal Filed On: 25-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Transactions in derivatives
• Section: 144; 201; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA BEFORE SHRI A.T, VARKEY , JM & DR. A.L. SAINI, AM ITA NO. 14 7 /KOL/201 9 A.Y 20 1 5 - 16 RAMESH RAMASUNDAR PAN: AFUPR6180D VS. I.T.O., WARD 63(3), KOLKATA ( / APPELLANT) .. ( / RESPONDENT) APPELLANT BY : SHRI ABHIJIT KR. INDRA, FCA, LD.AR RESPONDENT BY : SHRI KALYAN NATH, ADDL , CIT, LD.DR / DATE OF HEARING : 1 2 - 06 - 2019 / DATE OF PRONOUNCEMENT: 24 - 0 7 - 2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 20 1 5 - 16 , IS DIRECTED AGAINST THE ORDER DATED 30 - 08 - 2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 9 , KOLKAT A, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 14 4 OF THE INCOME - TAX ACT, 1961 ( IN SHORT THE ACT) DATED 2 8 - 12 - 201 7 . 2. AT THE OUTSET ITSELF, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE COULD NOT PL EAD HIS CASE BEFORE AO DUE TO DEATH OF HIS MOTHER AND FURTHER CONTINUES PHYSIOLOGICAL PROBLEMS AFTER DEATH OF HIS MOTHER. THE LEARNED COUNSEL PRAYED THE BENCH THAT MATTER MAY BE REMITTED BACK TO THE FILE OF AO FOR DE NOVO ADJUDICATION. LEARNED DR DID NOT H AVE ANY OBJECTION, IF THE MATTER IS REMITTED BACK TO THE FILE OF AO. 3 . AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD INCLUDING THE WRITTEN SUBMISSION ALONG WITH RELEVANT DETAILS AS FILED BY THE ASSESSEE BEFORE US , WE NOTE THAT BEFORE THE AO DU E TO SUDDEN DEMISE OF HIS MOTHER ITA NO. 14 7 /KOL/2019 RAMESH RAMASUNDAR 2 AND FOR SOME PHYSIOLOGICAL PROBLEMS, THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE THE AO/LD. CIT(A. A DETAILED ENCLOSURES REG ARDING HIS MOTHERS DEATH CERTIFICATE ISSUED BY KMC KOLKATA AND SERIOUS ILLNESS/MEDICAL TREAT MENT OF ASSESSEE PRESCRIBED BY DOCTOR ALONG WITH VARIOUS DETAILS/EVIDENCES IN RESPECT OF CLAIM /EXPENSES ETC PAGES 1 TO 91 ALSO SUBMITTED BEFORE US BY THE ASSESSEE . ON PERUSAL OF THE SAME, WE ARE OF THE VIEW TH AT THE ASSESSEE HAS NOT PROSECUTED /REPRESENTED HIS CASE PROPERLY BEFORE THE AO AND THE LD.CIT(A) BY SUBMITTING THE RELEVANT DOCUMENTS. THE ASSESSEE REMAINED UNATTENDED BEFORE THE LD. CIT(A) DUE TO SAID REASONS AS MENTIONED IN THE WRITTEN SUBMISSION. THE LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS O F ASSESSEE AND PASSED EX PARTE ORDER CONFIRMING THE ACTION OF THE AO MAKING THE ADDITIONS BY RELYING ON VARIOUS JUDGMENTS AVAILABLE IN THE IMPUGNED ORDER OF THE LD.CIT(A) . THE LD COUNSEL SUBMITTED BEFORE US THE ASSESSEE`S WRITTEN SUBMISSIONS AND PRAYED TH E BENCH TO REMIT THE ISSUE BACK TO THE FILE OF THE AO. RELEVANT PORTION OF ASSESSEES WRITTEN SUBMISSION IS REPRODUCED BELOW: - THE ASSESSEE WAS STAYING IN KOLKATA ALONGWITH HIS MOTHER. THE ASSESSEE HAS LOST HIS MOTHER ON 22.07.2016 (COPY OF THE DEATH CE RTIFICATE IS ENCLOSED). AFTER THE DEMISE OF HIS MOTHER, THE ASSESSEE HAS TO STAY ALONE IN KOLKATA AND UNFORTUNATELY SOME PHYSOLOGICAL PROBLEMS HAD DEVELOPED, WHICH ACTUAL LED TO CHRONIC INSOMNIA ALONGWITH CHRONIC DYSPEPSIA, SEVERE GASTRITIS AND HEPATITIS. THE HEALTH PROBLEMS GOT MORE AGGRAVATED AS THERE WAS NO ONE TO TAKE PROPER CARE OF HIS HEALTH IN KOLKATA, SINCE HE WAS STAYING ALONE AND WHICH HAD ULTIMATELY COMPELLED HIM TO SHIFT HIS BASE FROM KOLKATA TO MUMBAI WHERE HIS OTHER MEMBERS OF HIS FAMILY LIVE. AFTER GETTING HIMSELF TREATED WITH DIFFERENT DOCTORS IN MUMBAI WHICH HAD NOT YIELDED ANY POSITIVE RESULT OF HIS ALIMENTS, HE, ULTIMATELY HE HAS TO GET HIMSELF ADMITTED TO ADVANCE MEDICAL CARE INSTITUTE IN JANUARY, 2018 AND THEN SHIFTED TO PUNE FOR BETTER TREATMENT. IN THE SAID NURSING HOME HE HAD SPEND HIS DAYS LIKE A HOUSE ARREST PRISONER, HAVING NO ACCESS TO TELEPHONE FACILITIES WHETHER TO THE ITA NO. 14 7 /KOL/2019 RAMESH RAMASUNDAR 3 LAND LINE OF THE HOSPITAL OR TO HIS PERSONAL MOBILE AND LAPTOP. UNDER THIS SCENARIO HE COULD NOT CONTACT WITH TH E PEOPLE OUTSIDE THE TREATMENT ZONE. THIS HAS RESULTED LONG ABSENCE FROM WORK OF HIS OFFICE, AND FOR WHICH HE HAD TO LOSE HIS SERVICE OF HIS OFFICE M/S. INSPECTORATE GRIFFIN INDIA PVT. LTD, WHERE HE WAS WORKING FOR LAST 15 YEARS AND WAS RECEIVING A D A RE SPECTABLE SALARY. SO FROM THE ABOVE SUBMISSIONS IT CAN BE SAID THE ASSESSEE HAS BEEN DEPRIVED FROM THE FAIR SHARE OF JUSTICE FOR THE REASONS BEYOND CONTROL AS HE COULD NOT REPRESENT HIS CASE BY APPEARING BEFORE HIS ASSESSING OFFICER AND FURNISHING THE RE LEVANT DOCUMENTS IN SUPPORT OF HIS CLAIMS IN RESPECT OF DEDUCTION UNDER CHAPTER VI A OF THE INCOME TAX ACT'61 TO THE EXTENT OF RS. 2,00,351/ - AND DETAILS OF COMMODITY TRANSACTIONS AS REPORTED IN I.T.R. AND WHAT WAS HIS ULTIMATE PROFIT / LOSS THEREON AND FR OM THE DOCUMENT SUBMITTED BEFORE YOUR HONOUR IT CAN BE SEEN HE HAD SUFFERED LOSS ON COMMODITY TRANSACTIONS AS ENTERED INTO BY HIM, SO THE 8% PROFIT AS ASSUMED BY THE ASSESSING OFFICE AT THE TIME OF PASSING BEST JUDGMENT ASSESSMENT WITHIN THE MEANING OF SEC TION 144 OF THE INCOME TAX ACT'61 IS NOT AT ALL APPLICABLE. 4 . IN VIEW OF ABOVE, WE FIND THAT THE RE WAS SUFFICIENT REASON S IN NOT REPRESENTING/PROSECUTING THE CASE BY THE ASSESSEE BEFORE THE AO. DUE TO DEMISE OF ASSESSEES MOTHER AND FOR HIS SERIOUS I LLNESS, HE COULD NOT ARGUE /PROSECUTE HIS CASE N E ITHER BEFORE THE LD. AO N OR BEFORE THE LD. CIT(A) . THEREFORE, I N THE INTEREST OF JUSTICE AND FAIR PLAY WE REMIT THE MATTER BACK TO THE FILE OF THE LD.AO BY SETTING ASIDE THE IMPUGNED ORDER OF THE LD.CIT(A). T HE AO SHALL DECIDE THE ISSUE(S) AFRESH, AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD . THE ASSESSEE SHALL BE AT LIBERTY TO FILE REQUISITE EVIDENCES/EXPLANATION, IF ANY, TO SUBSTANTIATE HIS CASE BEFORE THE AO . ITA NO. 14 7 /KOL/2019 RAMESH RAMASUNDAR 4 5 . IN THE RE SULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 /0 7 /201 9 SD/ - (A.T. VARKEY) SD/ - (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 24 / 0 7 /201 9 *PP , S R. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - SHRI RAME SH RAMASUNDAR C/O CA, ABHIJIT KR. INDRA 18/A GULU OSTAGAR LANE, KOLKATA - 6. 2. / THE RESPONDENT. - THE INCOME TAX OFFICER, WARD 63(3). KOLKATA, AAYKAR BHAVAN DAKSHIN, , KOLKATA. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .