Ambika Prasad Roy Chowdhury, Burdwan V. ITO, Wd-2(4), Burdwan, Burdwan

ITA 1549/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9299 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-07-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1549/KOL/2016 ( / ASSESSMENT YEAR:2009-10) AMBIKA PRASAD ROY CHOWDHURY, PROP.: ANITA ENTERPRISE, KACHARI ROAD, KATWA, BURDWAN-713130 VS. ITO WARD-2(4), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN-713101 ./ ./PAN/GIR NO.: ADJPR 8275 J ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI SOUMITRA CHOUDHURY, ADVOCATE REVENUE BY : MD. GHAYAS UDDIN, JCIT / DATE OF HEARING : 15/02/2017 /DATE OF PRONOUNCEMENT 03/03/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2009-2010, IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-BUDWAN, KOLKATA IN APPEAL NO.289/CIT(A)/ASL/ WD.2(4)/BWN/2011- 12, DATED 31.05.2016, WHICH IN TURN ARISES OUT OF A N ORDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 22.12 .2011. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y.2009-2010 ON 30.0 9.2009 DECLARING TOTAL INCOME OF RS.2,26,720/-. THE CASE OF THE ASSESSEE W AS PROCESSED U/S 143(1) ON DATED 28.10.2010. LATER ON ASSESSEES CAS E WAS SELECTED FOR SCRUTINY AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING THE ADDITION ON ACCOUNT OF ACTIVATION CHARGES U/S.40(A) (IA) AND ADDITION U/S.43B ON ACCOUNT OF OUTSTANDING SERVICE TAX ETC. ITA NO.1549/KOL/2016 AMBIKA PRASAD ROY CHOWDHURY 2 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE OBSERVING THE FOLLOWINGS :- A NOTICE OF HEARING WAS INITIALLY ISSUED TO THE AP PELLANT ON 10.12.2015 FIXING FOR HEARING ON 12.01.2016. COPIES OF ITNS-51 ALONG WITH FORM NO. 35 CONTAINING GROUNDS OF APPEAL AND STATEMENT OF FACTS AND ALSO A COPY OF NOTICE U/S. 250 WERE SE RVED TO THE A.O. FOR HIS INFORMATION AND NECESSARY COMMENTS. FURTHER HEARING NOTICES WERE ISSUED ON 21.01.2016, FIXING FOR HEARI NG ON 10.02.2016. FURTHER HEARING NOTICE WAS ISSUED ON 16 .02.2016 AS ONE FINAL OPPORTUNITY GIVEN TO THE ASSESSEE FIXING THE HEARING ON 02.03.2016, NONE APPEARED. THE DATES OF HEARING AND OF NON-ATTENDANCE ON THE P ART OF THE APPELLANT ARE SUMMARIZED BELOW: SL.NO . DATE OF FIXING DATE OF HEARING REASONS OFFERED BY A PPELLANT 1. 10.12.2015 12.01.2016 NONE 2. 21.01.2016 10.02.2016 NONE 3. 16.02.2016 02.03.2016 NONE UNDER THE CIRCUMSTANCES, IT APPEARS THAT THE APPELL ANT DOES NOT WANT TO PURSUE THIS APPEAL, TO ADD TO THIS IS THE F ACT THAT THIS APPEAL IS A VERY OLD APPEAL, PENDING FOR SEVERAL YEARS. TH EREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BA SIS OF MATERIAL AVAILABLE ON RECORD. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE EX-PARTE DISMISSAL OF APPEAL MATTER ON THE ALLEGED GROUND OF NON - APPEARANCE WAS WARRANTED IN THE FACE OF PERTI NENT FACT OF PUSHING OVER OF APPEAL CASES ON APPOINTED DATES WIT HOUT HEARING AND WITHOUT NOTING ATTENDANCE BY COMMISSION ER OF INCOME - TAX. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE COMMISSIONER OF INCOME - TAX WAS JUSTIFIED IN CONFI RMING DISALLOWANCE OF ACTIVATION CHARGES WHICH IN REALITY REPRESENTS DISCOUNTING CHARGES IN RESPECT OF TRANSACTIONS BETW EEN PRINCIPAL TO PRINCIPAL OF RS.963800 UNDER SECTION 4 0(A)(IA) OF THE ACT ON THE WRONGFUL PREMISES OF APPLICATION OF 194H OF THE ACT. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE CONFIRMATION OF DISALLOWANCE OF UNPAID SERVICE TAX OF RS.83958 UNDER SECTION 43B OF THE ACT WITHOUT ASCERTAINING T HE PERTINENT ITA NO.1549/KOL/2016 AMBIKA PRASAD ROY CHOWDHURY 3 FACT OF CHARGE IN PROFIT & LOSS ACCOUNT AND OR CLAI M IN THE RETURN OF INCOME WAS JUSTIFIED ON THE PART OF COMMI SSIONER OF INCOME - TAX. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE WAS IT JUSTIFIED ON THE PART OF COMMISSIONER OF INCOME - TAX TO CONFIRM ESTIMATED DISALLOWANCES OF 25 PERCENT OF GR OSS EXPENDITURE OF RS. 96364 INCURRED FOR MAINTENANCE O F MOTOR CAR AND MOTOR CYCLE ON THE GROUND OF PROBABLE PERSONAL EXPENSES. 5. FOR THAT THE APPELLANT CRAVES LEASE TO ADD, ALT ER AND OR PREFER ADDITIONAL GROUNDS AND TO SUBMIT RELEVANT PAPERS AT THE TIME OF HEARING OF APPEAL MATTER. 5. ALTHOUGH, IN THIS APPEAL THE ASSESSEE HAS RAISE D FIVE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE SOLITARY G RIEVANCE OF THE ASSESSEE HAS BEEN CONFINED TO THE ISSUE THAT LD. CI T(A) HAS PASSED EX-PARTE ORDER WITHOUT PRESENCE OF THE ASSESSEE. 6. LD. AR FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE HAS CHANGED ITS ADDRESS, THEREFORE, HE COULD NOT GET TH E NOTICES ISSUED BY THE CIT(A), THEREFORE, LD. AR FOR THE ASSESSEE REQUESTE D THE BENCH, TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUD ICATE THE APPEAL AFRESH. THE LD. AR ALSO STATED BEFORE US THAT THE LD. CIT(A ) HAS PASSED THE ORDER IN HURRY STATING THAT THE ASSESSEES APPEAL IS VERY OLD AND PENDING FOR SEVERAL YEARS, THEREFORE, LD. AR FOR THE ASSESSEE H AS SUBMITTED THAT THE RIGHTS AND LIABILITIES OF THE ASSESSEE HAS NOT BEEN DETERMINED BY THE LD. CIT(A), THEREFORE, IT IS APPROPRIATE TO SEND THE CA SE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE ISSUE AFRESH. 7. LD. DR FOR THE REVENUE HAS PRIMARILY RELIED ON T HE STAND TAKEN BY THE LD. CIT(A), HOWEVER, HE HAS AGREED TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE ISSUE AFRESH. ITA NO.1549/KOL/2016 AMBIKA PRASAD ROY CHOWDHURY 4 8. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF LD. AR FOR THE ASSESSEE, AS THE PROPOSITION CANVASSED BY LD. AR FO R THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. AS, T HE LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT THE RIGHTS AND LIABIL ITIES OF THE ASSESSEE HAS NOT BEEN DETERMINED BY THE LD. CIT(A) BECAUSE O F NON-SERVICE OF NOTICE OF HEARING ON THE ASSESSEE. AS THE ASSESSEE HAS CHANGED THE ADDRESS AND, THEREFORE, HE COULD NOT GET NOTICE, AN D THEREFORE, CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, WE AR E OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUDICAT E THE ISSUE AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD, TO THE A SSESSEE. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/03/ 2017. S D/ - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 03/03/2017 ' $%& /PRAKASH MISHRA , SR.PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-AMBIKA PRASAD ROY CHOWDHURY 2. / THE RESPONDENT.- ITO. WD-2(4), BURDWAN 3. 0 ( ) / THE CIT(A), KOLKATA. 4. 0 / CIT 5. 12 3 4456 , 56 , / DR, ITAT, KOLKATA 6. 3 78 / GUARD FILE. 1 4 //TRUE COPY//