Abhishek Mall, Kolkata V. ACIT, Circle - 24, Kolkata, Kolkata

ITA 150/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7960 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2010
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 22-01-2010
• Court: TRIBUNAL
• Department Lawyers: R K PAL
• Assessee Lawyers: B C JAIN
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : KOLKATA [BEFORE HONBLE SMT. DIVA SINGH, JM & SHRI B.K.HAL DAR, AM] I.T. A. NO. 150/KOL/2010 ASSESSMENT YEAR 2004-05 SHRI ABHISHEK MALL -VS- A.C.I.T., CIRCLE-24, KOLKATA PAN:AJKPM 9950C KOLKATA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.C.JAIN RESPONDENT BY : SHRI R.K.PAL O R D E R PER SMT. DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-CENTRAL- XII, KOLKATA DATED 09.11.2009 PERTAINING TO A.YR.20 04-05 WHEREIN THE FOLLOWING TWO EFFECTIVE GROUNDS HAVE BEEN RAISED BEFORE US :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) ERRED IN PASSING ORDER WITHOUT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT. 2. WITHOUT PREJUDICE, IN THE FACTS AND CIRCUMSTANCE S OF THE CASE, THE LD. CIT(A) ERRED IN NOT ADJUDICATING ON THE GROUNDS OF APPEAL RAISED BEFORE HIM VIDE FORM NO.35 ON MERITS. 2. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE LD. AR THAT AN EXPARTE ORDER HAS BEEN PASSED BY THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE FOR NON REPRESENTATION. 3. ON A PERUSAL OF THE IMPUGNED ORDER AND TAKING N OTE OF THE SUBMISSIONS OF THE LD. AR, WE ARE OF THE VIEW THAT IN THE PECULIAR FAC TS AND CIRCUMSTANCES OF THE CASE THE IMPUGNED ORDER CANNOT BE UPHELD AS THE REQUIREMENTS OF SECTION 250(6) OF THE I.T.ACT HAVE NOT BEEN FULFILLED. IT IS SEEN THAT THE ASSESS EE HAS AGITATED BEFORE THE CIT(A) 13 GROUNDS. THIS FACT IS BORNE OUT FROM THE IMPUGNED O RDER ALSO. HOWEVER, THE SAID GROUNDS HAVE NOT BEEN ADJUDICATED UPON BY THE LD. C IT(A) SEIZED OF THE APPEAL WHO HAS SIMPLY DISMISSED THE APPEAL IN LIMINE ON THE GR OUNDS OF NON COMPLIANCE. A PERUSAL OF SECTION 250(6) OF THE IT ACT MANDATES TH AT FOR THE LD. CIT(A) WHILE DECIDING THE APPEAL MUST STATE THE POINTS FOR DETERMINATION AND SET OUT IN WRITING THE DECISION THEREON GIVING THE REASONS FOR THE DECISION. IN THE FACTS OF THE PRESENT THE SAID EXERCISE 2 IS MISSING. IT IS SEEN THAT THE LD. CIT(A) HAS AFFO RDED THREE SPECIFIC OPPORTUNITIES TO THE ASSESSEE MENTIONING THE DATES AND ON NONE OF THESE DATES THE ASSESSEE WAS EITHER PRESENT OR REPRESENTED. THE LD. AR IN THE COURSE OF THE HEARING HAS STATED THAT DUE TO THE ERRORS IN THE NOTING OF THE DATE ON THE PART OF HIS OFFICE THE ASSESSEE COULD NOT BE REPRESENTED HOWEVER, HE UNDERTOOK THAT THE ASSESSEE WOULD PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A) IF THE ISSUES ARE RES TORED. AS SUCH A PRAYER WAS MADE THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR A DISPOSAL ON MERIT. 4. THE LD. DR HAD NO OBJECTION IF THE ISSUE IS REST ORED BACK FOR A DECISION ON MERITS. 5. IN THE LIGHT OF THE ARGUMENTS ADVANCED BEFORE TH E BENCH ON THE FACTS AND CIRCUMSTANCES AVAILABLE ON RECORD AND THE POSITION OF LAW AS HAS BEEN DISCUSSED BY US IN THE EARLIER PART OF THIS ORDER WE ARE OF THE CO NSIDERED VIEW THAT IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE LD.CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT THE APPEAL OF THE ASSESSE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.03.2010. SD/- SD/- (B.K.HALDAR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED : 22.03.2010. COPY OF THE ORDER IS FORWARDED TO :- 1) SHRI ABHISHEK MALL, 216, MAHATMA GANDHI ROAD, KOLKA TA-700007. 2) A.C.I.T., CIRCLE -24, KOLKATA 3) CIT (A)CENTRAL, XII, KOLKATA (4) CIT - KOLKATA. 5) D. R., I.T.A.T., KOLKATA. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, (RG) I.T.A.T., KOLKATA.