M/s Shiv Ganga Distributors Pvt. Limited, Kolkata V. JCIT- Range -1, Kolkata, Kolkata

ITA 1544/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1205 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOMDUTTA SAMADDAR RESPONDEN
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Opportunity of being heard
• Section: 143(3); 2

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1544 / KOL / 2016 ASSESSMENT YEAR :2011-12 M/S SHIV GANGA DISTRIBUTORS PVT. LTD., 209, A.J.C. BOSE ROAD, ROMNO.18B, 1 ST FLOOR, KARNANI ESTATE, KOLKATA-17 [ PAN NO.AAKFA 3492 N ] V/S . JCIT, RANGE-1, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SOMDUTTA SAMADDAR, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 06-02-2018 /DATE OF PRONOUNCEMENT 28-03-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA FOR THE ASSESSMENT YEAR 2011-12 IN THE MATTER OF ORDER PASSED U/S 143(3) DATED 14.06.2016 SHRI SOMDUTTA SAMADDAR, LD. ADVOCATE APPEARED ON BE HALF OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEEE, LD. DEPARTMENTAL REPRESENTA TIVE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET, IT WAS OBSERVED THAT LD. CIT(A) H AS PASSED EX PARTE ORDER ON THE GROUND THAT ASSESSEE FAILED TO APPEAR ON THE DA TES OF HEARING I.E. 20.5.2016 AND 13.6.2016 AND CONCEDED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING ITS APPEAL. 3. AT THE OUTSET IT IS SEEN THAT THE ORDER OF LD.C IT(A) IS EX PARTE ORDER AND NOTHING IS DECIDED ON MERITS, EVEN THOUGH IT IS EX PARTE . CAN THE LD. CIT(A) PASS AN EX PARTE ORDER WITHOUT SPEAKING ON MERITS? WE ARE OF THE VI EW THAT ITA NO.1544/KOL/2016 A.Y. 201 1-12 M/S SHIV GANGA DISTRIBUTORS PVT. LTD. VS. JCIT, RNG-1, KOL PAGE 2 SECTION 250(2) OF THE ACT GRANTS THE ASSESSEE AS WE LL AS THE AO A RIGHT TO BE HEARD BY THE FIRST APPELLATE AUTHORITY. THE APPELLA TE AUTHORITY HAS A LEGAL DUTY TO HEAR AND DISPOSE OF THE APPEAL. EVEN NO DISMISSA L FOR DEFAULT CAN BE MADE BUT APPEAL IS TO BE DECIDED ON MERITS. WHERE AN APP EAL IS TO BE DISPOSED OF, EVEN THOUGH ON MERITS AFTER TAKING RELEVANT FACTS I NTO CONSIDERATION, WITHOUT GIVING A NOTICE OF HEARING TO THE ASSESSEE, AN APPL ICATION FOR SETTING ASIDE OF EX PARTE ORDER IS MAINTAINABLE. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THIS ORDER NEEDS TO BE SET ASIDE AND REMAND THE APP EAL BACK TO THE FILE OF LD.CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY, THAT THE LD.CIT(A) WILL PASS A SPEAKING ORDER ON MERITS. THE ASSESSEE IS ALSO DIRE CTED TO APPEAR BEFORE THE LD. CIT(A) AND EXTEND FULL COOPERATION IN THE PROCE EDINGS. 4. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28/ 03/2018 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #- 28 / 03 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S SHIV GANGA DISTRIBUTORS PVT. LTD. 20 9 AJC BOSE ROAD, ROOM NO. 18B, 1 ST FLOOR, KARRNANI ESTATE, KOLKATA-17 2. /RESPONDENT-JCIT, RANGE-1, AAYAKAR BHAWANA, P-7, CH OWRINGHEE SQ. KOL-69 3. / 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO /,