Sutapa Bose, Hooghly V. ACIT, CIR-47, KOLKATA, Kolkata

ITA 1506/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1026 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMITABHA BHATTACHARYA CIT D
• Keywords: Opportunity of being heard; Bonafide belief

Judgement Text

1 ITA NO.1506/KOL/2015 SUTAPA BOSE, AY, 2008-09 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1506/KOL/2015 ASSESSMENT YEAR: 2008-09 SUTAPA BOSE (PAN:AKBPB0769J) VS. ASSISTANT COMMISSI ONER OF INCOME-TAX, CIRCLE-47, KOLKATA APPELLANT RESPONDENT DATE OF HEARING 04.10.2017 DATE OF PRONOUNCEMENT 22.11.2017 FOR THE APPELLANT SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT SHRI AMITABHA BHATTACHARYA, ADDL . CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-30, KOLKATA DATED 26.03.2013 FOR AY 2008-09. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE FACT THAT THE ORDER PASSED BY THE LD. CIT(A) AS WELL AS BY TH E AO ARE EX PARTE ORDERS. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE HAD ENTRUSTED THE TAX MATTERS WITH ONE SHRI A. B. MOITRA, WHO EXPIRED IN THE MONTH OF DECEMBER, 2007 AND THEREAFT ER, HIS CHAMBER JUNIOR SHRI SANTANU LAHIRI WAS ENTRUSTED BY THE ASSESSEE TO REPRESENT T HE MATTER BEFORE THE AO. HOWEVER, HE MADE APPEARANCE TWICE BEFORE THE AO, THEREAFTER HE DID NOT APPEAR. THE AO ISSUED SHOW CAUSE NOTICE TO THE AR, BUT SINCE THE AR DID NOT TU RN-UP OR GIVE ANY REPLY TO THE SAID SHOW CAUSE NOTICE RESULTANTLY, THE AO REJECTED THE BOOK OF ACCOUNTS OF THE ASSESSEE AND THE AUDITORS REPORT AND THEREBY HE DID NOT ALLOW THE E XPENSES CLAIMED BY THE ASSESSEE TO THE TUNE OF RS.66,59,246/-. DURING THE APPEAL BEFORE T HE LD. CIT(A), IN THE SAME WAY THE LD. AR DID NOT TURN-UP BEFORE HIM ALSO, WHICH PROMPTED HIM TO DISMISS THE APPEAL. ACCORDING TO THE ASSESSEE, THE DEVELOPMENTS AFTER FILING OF A PPEAL AND THEREAFTER THE DISMISSAL OF THE SAME WAS NOT COMMUNICATED TO THE ASSESSEE BY SHRI S ANTANU LAHIRI AND THE ASSESSEE GOT A SHOCK WHEN SHE RECEIVED THE DEMAND NOTICE AND THEN ONLY REALIZED THE NEGLIGENCE OF HER AR 2 ITA NO.1506/KOL/2015 SUTAPA BOSE, AY, 2008-09 SHRI SANTANU LAHIRI. IMMEDIATELY THEREAFTER, SHE C ONFRONTED, SHRI SANTANU LAHIRI, WHO COULD NOT EXPLAIN AS TO WHY IN THE APPELLATE PROCEE DING HE WAS NOT PRESENT AND WHY HE DID NOT COMMUNICATE THE RESULT OF THE APPELLATE PROCEED INGS TO THE ASSESSEE. THEREAFTER, SHRI SOMNATH GHOSH, ADVOCATE WAS ENTRUSTED THE TAX MATTE R, WHO IMMEDIATELY ADVISED HER TO FILE THE APPEAL BEFORE THE TRIBUNAL AND THUS THE AP PEAL WAS FILED WHICH RESULTED IN DELAY OF 860 DAYS. ACCORDING TO THE LD. COUNSEL, ASSESSEE E NTRUSTED THE MATTER TO SHRI SANTANU LAHIRI, AN ADVOCATE ON THE BONAFIDE BELIEF THAT THE LAWYER WOULD REPRESENT HER CASE TO THE BEST OF HIS ABILITY BEFORE THE LD. CIT(A) AND COMMU NICATE TO HER THE RESULT OF THE PROCEEDINGS BEFORE THE LD. CIT(A). SINCE SHE WAS N OT AT FAULT, THE LD. COUNSEL PRAYS THAT THE DELAY MAY BE CONDONED AND THE MATTER BE REMITTE D BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION SINCE EVIDENCE COULD NOT BE FURNISHED BEFORE THE AO. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THERE WAS A DELAY OF 860 DAYS F OR PREFERRING AN APPEAL BEFORE THE TRIBUNAL. ACCORDING TO THE AFFIDAVIT FILED BY THE ASSESSEE, WE NOTE THAT ASSESSEES TAX CONSULTANT SHRI A. B. MAITRA WAS EXPIRED IN THE MON TH OF DECEMBER, 2007 AND THEREAFTER THE JUNIOR OF MR. MAITRA SHRI SANTANU LAHIRI, ADVOCATE WAS LOOKING AFTER THE TAX MATTER OF THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS, SHRI LAHIRI APPEARED TWICE AND THEREAFTER HE DID NOT APPEAR AND FAILED TO FURNISH THE DOCUMENTS THAT WAS ASKED BY THE AO TO ASSESS THE ASSESSEE WHICH RESULTED IN THE AO REJECTING THE AUD ITORS REPORT U/S. 145(3) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) AND MADE DISALLOWANCE OF THE ENTIRE CLAIM OF RS.66,59,246/-. DURING APPELLATE PROCEEDI NGS, SHRI LAHIRI DID NOT APPEAR BEFORE THE LD. CIT(A) AND THE IMPUGNED ORDER WAS PASSED BY THE LD. CIT(A) ON 26.03.2013 AND THEREAFTER, SHRI LAHIRI DID NOT HAD THE COURTESY TO EVEN INFORM THE ASSESSEE ABOUT THE DISMISSAL OF THE APPEAL. ONLY WHEN THE DEMAND WAS R AISED, THE ASSESSEE WAS SHOCKED TO REALIZE THAT THE APPEAL HAS BEEN DISMISSED. SHE CO NFRONTED SHRI LAHIRI WHO COULD NOT EXPLAIN AS TO THE REASON WHY HE DID NOT REPRESENT H ER CASE BEFORE THE LD. CIT(A) AND SIMPLY HANDED OVER THE FILE TO THE ASSESSEE. ASSESSEE THE REAFTER IMMEDIATELY APPROACHED SHRI SOMNATH GHOSH, ADVOCATE, WHO ADVISED THE ASSESSEE T O FILE THE APPEAL ALONG WITH THE CONDONATION PETITION FOR 860 DAYS DELAY. ACCORDING TO THE LD. COUNSEL, FOR THE MISTAKE COMMITTED BY THE ADVOCATE OF THE ASSESSEE, THE ASSE SSEE SHOULD NOT BE PENALIZED. FOR THAT HE RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123 WHEREIN A SIMILAR CA SE WHERE THERE WAS A DELAY OF 883 3 ITA NO.1506/KOL/2015 SUTAPA BOSE, AY, 2008-09 DAYS BECAUSE OF THE MIS-HANDLING THE CASE BY THE AD VOCATE OF THE PETITIONER, THE HONBLE SUPREME COURT CONDONED THE DELAY TAKING NOTE THAT T HE PETITIONER CANNOT BE FAULTED DUE TO THE LATCHES OF THE LAWYER. TAKING NOTE OF THE HON BLE SUPREME COURTS DECISION, AND THE FACTS NARRATED ABOVE WHICH CAUSED THE DELAY, WE ARE CONVINCED THAT THE FAULT LIES WITH THE ADVOCATE WHO WAS ENTRUSTED WITH THE APPEAL AND FOR THE FAULT OF HER LAWYER, THE ASSESSEE CANNOT BE PENALIZED, SO, WE ARE INCLINED TO CONDONE THE DELAY OF 860 DAYS AND REMAND THE MATTER BACK TO THE FILE OF THE AO SINCE THE MATTER HAS NOT BEEN ADJUDICATED PROPERLY BY THE AO BECAUSE OF NON-PRODUCTION OF DOCUMENTS AT THE ST AGE OF ASSESSMENT PROCEEDING ITSELF. FOR DOING SO, WE RELY ON THE ORDER OF THE HONBLE S UPREME COURT (THREE JUDGES) BENCH DECISION IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER (HEAD NOTE): HELD, REVERSING THE DECISION OF THE HIGH COURT, TH AT ONCE THE TRIBUNAL FOUND THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD, THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT CO UNTED: THAT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. IN THE LIGHT OF THE AFORESAID DECISION OF THE HONB LE SUPREME COURT, CITED SUPRA, WE ARE INCLINED TO REMAND THE MATTER BACK TO THE FILE OF T HE AO FOR DE NOVO ASSESSMENT. NEEDLESS TO SAY, ASSESSEE SHOULD BE GIVEN REASONABLE OPPORTU NITY OF BEING HEARD BY THE AO AND WE GIVE LIBERTY TO ASSESSEE TO ADDUCE EVIDENCE IN SUPP ORT OF HER CLAIM FOR EXPENSES. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE DE NO VO ASSESSMENT PROCEEDINGS BEFORE THE AO. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPO SES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22ND N OVEMBER, 2017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22ND NOVEMBER, 2017 JD.(SR.P.S.) 4 ITA NO.1506/KOL/2015 SUTAPA BOSE, AY, 2008-09 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SMT. SUTAPA BOSE, C/O S. N. GHOSH & ASSOCIATES, ADVOCATES, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHI NSURAH, DIST. HOOGHLY, PIN 712 105 2 RESPONDENT ACIT, CIRCLE-47, KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY