Acme Vyaapaar Pvt. Ltd., Kolkata V. ITO, Ward - 1(4), Kolkata, Kolkata

ITA 1526/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4392 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 28-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

1 ITA NO. 1526/KOL/2017 ACME VYAPAAR P. LTD., AY 2008-09 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) BEFORE . . , /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 1526/KOL/2017 ASSESSMENT YEAR: 2008-09 ACME VYAPAAR PVT. LTD. (PAN: AAFCA8006L) VS. INCOME-TAX OFFICER, WD-1(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 26.09.2018 DATE OF PRONOUNCEMENT 31.10.2018 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI ALTAF HUSSAIN, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-9, KOLKATA DATED 29.03.2017 FOR AY 2008-09. 2. AT THE OUTSET, THE LD. AR BROUGHT TO OUR NOTICE THAT THE ASSESSEE WAS NOT IN RECEIPT OF NOTICES ISSUED BY BOTH THE AUTHORITIES BELOW NAMELY , AO AS WELL AS LD. CIT(A). FOR BUTTRESSING THIS FACT THE LD. AR DREW OUR ATTENTION TO THE ADDRESS IN THE IMPUGNED ORDER OF THE LD. CIT(A) WHEREIN THE NEW ADDRESS OF THE ASSES SEE HAS BEEN NOTED BY LD. CIT(A) AT PAGE 3 WHICH IS 32, JAHAWAR LAL NEHRU ROAD, ROOM NO . 1006, OM TOWERS, KOLKATA-700 071 IS FOUND CLEARLY MENTIONED AS THE NEW ADDRESS O F ASSESSEE. HOWEVER, THE ADDRESS IN WHICH THE ASSESSEE HAS BEEN SERVED NOTICES WERE AT THE OLD ADDRESS AT SAKALAT PLACE, KOLKATA-700 072. IT WAS BROUGHT TO OUR NOTICE THAT THE ADDRESS OF THE ASSESSEE WAS CHANGED W.E.F. 02.04.2010 WHICH IS EVIDENT FROM THE FORM 18 OF THE COMPANIES ACT, 1956. IT WAS ALSO BROUGHT TO THE NOTICE OF THE LD. CIT(A) THAT T HE DATA BASE OF THE INCOME TAX DEPARTMENT WAS UPDATED WITH THE NEW ADDRESS. HOWEV ER, ACCORDING TO THE LD. AR, THE LD. CIT(A)/OFFICE OF THE FIRST APPELLATE AUTHORITY DID NOT GIVE DUE COGNIZANCE OF THE CHANGE OF 2 ITA NO. 1526/KOL/2017 ACME VYAPAAR P. LTD., AY 2008-09 ADDRESS AND, THEREFORE, THE ASSESSEE WAS NOT PUT ON NOTICE ABOUT THE HEARING BEFORE THE LD. CIT(A) AS WELL AS THAT OF THE AO WHICH RESULTED IN AO PASSING BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT CITING OLD ADDRESS. THEREFORE, IT WAS PRAYED BY THE LD. AR THAT SINCE THE ASSESSEE DID NOT GET PROPER OPPORTUNITY FOR WANT OF NOTICE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE ITS CASE BEFORE THE AO. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. FROM THE FACTS NARRATED ABOVE, WE FIND THAT THE AO IN THE ASSESSMENT ORDER HAS TAKEN NOTE OF THE ASSESSEES OLD ADDRESS AT SAKALAT PLACE , KOLKATA-700072 WHEREAS THE NEW ADDRESS OF THE ASSESSEE WHICH WAS CHANGED W.E.F. 02 .04.2010 IS 32, JAHAWAR LAL NEHRU ROAD, ROOM NO. 1006, OM TOWERS, KOLKATA-700 071 WHI CH WAS DULY REFLECTED IN THE FORM 18 OF THE COMPANIES ACT, 1956. IT WAS EVEN BROUGHT TO OUR NOTICE THAT THE DATA BASE OF THE INCOME TAX DEPARTMENT WAS ALSO UPDATED WITH THE NEW ADDRESS. HOWEVER, BOTH THE AUTHORITIES BELOW FAILED TO APPRECIATE THIS FACT OF CHANGE OF ADDRESS WHICH RESULTED IN NOTICE BEING NOT SERVED UPON THE ASSESSEE AND THUS THERE W AS A VIOLATION OF NATURAL JUSTICE. SINCE NO PROPER OPPORTUNITY OF HEARING HAS BEEN PROVIDED TO THE ASSESSEE AT THE STAGE OF ASSESSMENT PROCEEDINGS, WE ARE INCLINED TO REMAND F OR DE-NOVO ASSESSMENT BACK TO AO. IN A SIMILAR CASE, WE NOTE THAT THE HONBLE (THREE JUD GE BENCH) OF THE HONBLE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? 3 ITA NO. 1526/KOL/2017 ACME VYAPAAR P. LTD., AY 2008-09 IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 6. IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND SINCE THE A SSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO DURING RE ASSESSMENT PROCEEDINGS, W E SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31/10/20 18 SD/- SD/- (M. BALAGANESH) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31ST OCTOBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT ACME VYAPAAR PVT. LTD., 32, JAWAHAR LAL NEHRU ROAD, OM TOWERS, ROOM NO.1006, KOLKAT-700071. 2 RESPONDENT ITO, WARD-1(4), KOLKATA. 3 4 5 CIT(A)-9, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY