Auto Distributors Ltd., Kolkata V. I.T.O.,Ward-8(1), Kolkata

ITA 1503/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1190 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M D SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Speculation loss; Set aside
• Section: 143(3); 250

Judgement Text

ITA NO. 1503/KOL/2019 ASSESSMENT YEAR: 2005-2006 AUTO DISTRIBUTORS LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 1503/KOL/2019 ASSESSMENT YEAR: 2005-2006 AUTO DISTRIBUTORS LIMITED,......................... .................................APPELLANT 36C/1, CHOWRINGHEE ROAD, KOLKATA-700071 [PAN: AACCA7434M] -VS.- INCOME TAX OFFICER,................................ ......................................RESPONDENT WARD-8(1), KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI M.D. SHAH, ADVOCATE, FOR THE APPELLANT SHRI DHRUBAJYOTI ROY, JCIT, SR. D.R., FOR THE RESPO NDEN T DATE OF CONCLUDING THE HEARING : NOVEMBER 14, 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 18, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA DA TED 27.03.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 28.10.2005 DECLARING A LOSS OF RS.14,36,400/-. IN THE ASSESSME NT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 30.03.2007, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.1,07,542/- AFTER DISALLOWING THE CLAIM OF THE ASSESSEE FOR SHARE TRA DING LOSS AS BUSINESS ITA NO. 1503/KOL/2019 ASSESSMENT YEAR: 2005-2006 AUTO DISTRIBUTORS LIMITED 2 LOSS AND TREATING THE SAME AS SPECULATION LOSS BY I NVOKING EXPLANATION BELOW SECTION 73. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY CO MPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 27.03.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT ALTHOUGH ADJOURNMENT WAS SOUGHT BY T HE ASSESSEE WHEN ITS APPEAL WAS FIXED FOR HEARING BY THE LD. CIT(APP EALS) INITIALLY ON THREE OCCASIONS, THE NOTICE STATED TO BE ISSUED BY THE LD . CIT(APPEALS) FIXING THE SAID APPEAL FINALLY FOR HEARING ON 12.03.2019 COULD NOT BE COMPLIED BY THE ASSESSEE-COMPANY AS THE SAME WAS NOT RECEIVED B Y IT. HE HAS CONTENDED THAT THE LD. CIT(APPEALS), HOWEVER, DID N OT GIVE ANY FURTHER OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO DISMIS S THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. A S RIGHTLY CONTENDED BY HIM, THE ASSESSEE THUS WAS NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD BY THE LD. CIT(APPEALS) BEFORE DISMI SSING ITS APPEAL FOR NON-PROSECUTION VIDE HIS IMPUGNED ORDER PASSED EX-P ARTE AND THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. M OREOVER, THE LD. CIT(APPEALS) AS PER THE PROVISIONS OF SUB-SECTION ( 6) OF SECTION 250 WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE V IDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DOES NOT COMPLY WITH THESE REQUIREMENT S. I, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ITA NO. 1503/KOL/2019 ASSESSMENT YEAR: 2005-2006 AUTO DISTRIBUTORS LIMITED 3 IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF T HE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 18, 2019. SD/- (P.M. JAGTAP) VICE-PR ESIDENT) KOLKATA, THE 18 TH DAY OF DECEMBER, 2019 COPIES TO : (1) AUTO DISTRIBUTORS LIMITED, 36C/1, CHOWRINGHEE ROAD, KOLKATA-700071 (2) INCOME TAX OFFICER, WARD-8(1), KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-12, K OLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.