Asharam Traders Pvt. Ltd., Kolkata V. ITO, Ward -2(2), Kolkata, Kolkata

ITA 1558/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9619 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 28-07-2016
• Court: TRIBUNAL
• Department Lawyers: S M SARFURASUT TAUHEED J
• Assessee Lawyers: ARVIND AGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.1557 AND 1558/KOL/2016 ( / ASSESSMENT YEAR:2012-13 AND 2014-15 ) ASHARAM TRADERS PVT. LIMITED ROOM NO.4, 16B MAHIM CHANDRA DAS SARANI, KOLKATA- 700012 VS. INCOME TAX OFFICER, WARD- 2(2),AAYAKAR BHAWAN, P-7 CHOWRINGHEE SQUARE, KOLKATA-700069 ./ ./PAN/GIR NO. : AACCA 1515 F ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI ARVIND AGARWAL, ADVOCATE REVENUE BY : SHRI S.M.SARFURASUT TAUHEED JCIT-DR / DATE OF HEARING : 29/12/2016 /DATE OF PRONOUNCEMENT 04/01/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED TWO APPEALS FILED BY THE ASSESSEE, PE RTAINING TO ASSESSMENT YEARS 2012-2013 AND 2014-15, ARE DIRECT ED AGAINST THE ORDERS PASSED BY LD. COMMISSIONER OF INCOME TAX (AP PEALS)-1, KOLKATA, IN APPEAL NO.1077/CIT (A)-1/WARD-2(2)/2014-15 AND A PPEAL NO.943/CIT(A)-1/W-2(2)/14-15, DATED 15.06.2016 AND 09.06.2016, WHICH IN TURN ARISE OUT OF ASSESSMENT ORDERS PASSED BY TH E ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 196 1, (IN SHORT THE ACT), DATED 16.02.2015 AND 27.12.2014, RESPECTIVE LY. 2. THESE TWO APPEALS RELATE TO SAME ASSESSEE, DIFFE RENT ASSESSMENT YEARS, COMMON ISSUES INVOLVE, THEREFORE THESE HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PA SSED FOR THE SAKE OF CONVENIENCE AND BREVITY. THE ASSESSEE`S APPEAL IN I TA NO. 1557/KOL/2016 IS TAKEN AS THE LEAD CASE. ITA NO.1557 & 1558/KOL/2016 ASHARAM TRADERS PVT.LTD. 2 3. THE BRIEF FACTS QUA THE ASSESSEE ARE THAT THE AS SESSEE COMPANY IS ENGAGED IN THE BUSINESS OF SUB BROKING. THE ASSESSE E COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 O N 18.09.2012 BY DECLARING A BUSINESS LOSS OF RS.58,953/- AND STCG O F RS.19,268/-. THE CASE OF ASSESSEE COMPANY WAS SELECTED FOR SCRUTINY U/S 143(3) OF THE ACT AND ASSESSING OFFICER COMPLETED THE ASSESSMENT BY M AKING DISALLOWANCE U/S 14A READ WITH RULE 8D AT RS. 5,22,110/-. 4. AGGRIEVED FROM THE ORDER PASSED BY THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), WHO HAS CONFIRMED THE ADDITION MADE BY T HE ASSESSING OFFICER BY PASSING AN EX-PARTE ORDER, WITHOUT PRESENCE OF T HE ASSESSEE. THE LD.CIT(A) PASSED THE EX-PARTE ORDER FOR BOTH THE AS SESSMENT YEARS, THAT IS, A.Y.2012-13 & A.Y.2014-15, OBSERVING THAT ASSES SEE HAD NEITHER ATTENDED HIS OFFICER NOR FILED ANY ADJOURNMENT LETT ER. 5. NOT BEING SATISFIED WITH THE ORDER PASSED BY TH E LD CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US ( FOR BOTH THE ASSESSMENT YEARS) AND HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1.FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) WAS WRONG IN NOT GRANTING PROPER OPPORTUNITY OF BEING H EARD TO THE APPELLANT. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN MECHANICALLY CONFIRMING ARBITRARY DISALLOW ANCE OF RS. 6,21,723/- UNDER SECTION 14A OF THE INCOME TAX ACT, 1961, BY THE ASSESSING OFFICER AGAINST THE APPELLANT`S OWN DISAL LOWANCE OF RS.99,613/-, IGNORING ALTOGETHER THE BASIS ADOPTED BY THE APPELLANT FOR SUCH DISALLOWANCE IN ITS RETURN OF INCOME, WITH OUT ASSIGNING ANY REASON THERE FOR. ITA NO.1557 & 1558/KOL/2016 ASHARAM TRADERS PVT.LTD. 3 6. ALTHOUGH IN THIS APPEAL THE ASSESSEE HAS RAISED TWO GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING THE GRIEVANCE OF THE ASSESSEE HAS BEEN CONFINED TO GROUND NO. 1 AND GROUND NO.2 W AS NOT PRESSED BY THE ASSESSEE. THEREFORE, THE SOLITARY GRIEVANCE OF THE ASSESSEE IN BOTH THE YEARS ( IN BOTH APPEALS) IS THAT LD CIT (A ) HAD PASSED THE ORDER EX-PARTE WITHOUT GIVING AN OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 6.1 LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING FROM LD.CIT(A ). THE ASSESSEE HAD CHANGED ITS ADDRESS AND INTIMATED THE SAME TO ASSES SING OFFICER AND CIT(A). THE LD.CIT(A) USED TO SEND THE NOTICES FOR HEARING ON THE OLD ADDRESS, THAT IS WAY, THE ASSESSEE DID NOT GET NOTI CES FORM LD.CIT(A). CONSEQUENTLY, THE LD.CIT(A) PASSED THE EX-PARTE ORD ER IN BOTH THE YEARS. THEREFORE, THE LD.AR FOR THE ASSESSEE HAS REQUESTED US TO SEND THE CASE BACK TO THE LD.CIT(A) TO ADJUDICATE AFRESH. 6.2. EVEN LD. DR FOR THE REVENUE HAS AGREED WITH LD AR, TO REMIT THE CASE BACK TO THE FILE OF LD.CIT(A). 6.3 HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN T HE SUBMISSIONS OF THE ASSESSEE, AS THE PROPOSITION CANVASSED BY THE LD. A R FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. T HE LD AR FOR THE ASSESSEE HAS POINTED OUT THAT ASSESSEE DID NOT RECE IVE AND NOTICE FOR HEARING FROM CIT(A) DUE TO CHANGE IN ADDRESS. KEEPI NG IN MIND THE PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE VIEW TH AT BOTH THE APPEALS SHOULD ITA NO.1557 & 1558/KOL/2016 ASHARAM TRADERS PVT.LTD. 4 BE REMIT BACK TO THE FILE OF THE LD CIT(A) TO ADJUD ICATE BOTH THE APPEALS AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. ACCORDINGLY, WE REMIT THE CASE BACK TO THE FILE OF THE LD CIT(A) WITH THE DIRECTION TO ADJUDICATE BOTH THE APPEALS ,AFTER GIV ING PROPER OPPORTUNITY OF BEING HEARD 6.4 IN THE RESULT, BOTH APPEALS ( ITA NO.1557 AND 1558/KOL/2016) FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04/01 /2017. SD/ - (A.T.VARKEY) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 04/01/2017 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) $ % , / ITAT, 1. / THE APPELLANT-ASHARAM TRADERS (P) LTD. 2. / THE RESPONDENT.- ITO WARD-2(2), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//