Pattern Jewellery Pvt Ltd, Kolkata V. C.I.T Kolkata - III, Kolkata

ITA 1559/KOL/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7567 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT SR DR REVE
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(1); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S. S. GODARA, JUDICIAL MEMBER) I.T.A NO. 1559/KOL/2013 ASSESSMENT YEAR: 2009-10 PATTERN JEWELLERY PVT. LTD...............................................................................APPELLANT 7/1, BABULAL LANE NEAR THAKUR MAHAL KOLKATA 700 007 [PAN : AAECP 5688 A] COMMISSIONER OF INCOME TAX, KOLKATA-III, KOLKATA.....................................................RESPONDENT APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SAURABH KUMAR, ADDL.CIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 4 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 16 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX: KOLKATA - III, KOLKATA, (HEREINAFTER THE LD. CIT), DT. 22/03/2013, PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2008-09. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AN EX-PARTE ORDER WAS PASSED BY THE LD. CIT. HE SUBMITTED THAT THOUGH THE ASSESSEE HAD INTIMATED THE DEPARTMENT ABOUT THE CHANGE IN ADDRESS. NOTICES WERE SENT TO THE PREVIOUS ADDRESS BY THE LD. CIT. HENCE HE SUBMITTED THAT NOTICE WAS NEVER SERVED ON THE ASSESSEE AND HENCE HE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. HE RELIED ON THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. SUGANDHA NIRMAN PVT. LTD. VS. CIT, KOL-II, ITA NO. 1600/KOL/2013; ASSESSMENT YEAR 2008-09, ORDER DT. 05/04/2017 AND THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. RATNAGIRI COMMERCIAL PVT. LTD. AND ANR. VS. ITO; GA NO. 1298 OF 2016/ W.P NO. 440 OF 2014; DT. 17/05/2016. 2 I.T.A NO. 1559/KOL/2013 ASSESSMENT YEAR: 2009-10 PATTERN JEWELLERY PVT. LTD 3. THE LD. D/R, THOUGH NOT LEAVING HIS GROUND ULTIMATELY AGREED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT, ON THE GROUNDS OF NATURAL JUSTICE. 4. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. SUGANDHA NIRMAN PVT. LTD. VS. CIT, KOL-II (SUPRA) , AT PARA 5 & 6 HAD HELD AS FOLLOWS:- 5. IT WAS THE SUBMISSION BY THE ID. COUNSEL FOR THE ASSESSEE THAT EVEN IN THE IMPUGNED ORDER OF THE CIT PASSED U/S 263 OF THE ACT, IT HAS BEEN MENTIONED THAT THERE WAS VALID SERVICE OR SHOW CAUSE NOTICE U/S 263 OF THE ACT AND THE ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS AND THEREFORE ORDER IS BEING PASSED EX-PARTE. THE ID. COUNSEL POINTED OUT THAT SERVICE OR THE SHOW CAUSE NOTICE WAS IN THE OLD ADDRESS OF THE ASSESSEE WHICH WAS EFFECTED BY AN AFFIXTURE. THE NEW ADDRESS OR THE ASSESSEE AS FOUND IN THE SUBSEQUENT RECORDS IS 227/1A, A.J.C. BOSE ROAD, FLAT NO.9D, GARDENIA BUILDING, KOLKATA 20. THOUGH THIS ORDER OF THE CIT IS SILENT ON THE MODE OF SERVICE THE LD. COUNSEL FOR THE ASSESSEE MADE A STATEMENT ACROSS THE BAR THAT THE SHOW CAUSE NOTICE WAS SERVED BY AFFIXTURE AT THE OLD ADDRESS OR THE ASSES SEC. HENCE THE ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS U/S 263 BEFORE CIT. HIS LIMITED PRAYER WAS THAT ORDER OF CIT SHOULD BE SET ASIDE AND THE ASSESSEE SHOULD BE AFFORDED OPPORTUNITY OF BEING HEARD BEFORE CIT THE ID. COUNSEL ALSO BROUGHT TO OUR NOTICE THAT IN SIMILAR CIRCUMSTANCES THE HONBLE HIGH COURT OR CALCUTTA IN GA NO.1298 OF 2016 ORDER DATED 17.05.2016 HAD SET ASIDE THE ORDER OF CIT U/S 263 OF THE ACT AND REMANDED THE MATTER TO CIT FOR FRESH CONSIDERATION AFTER A AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD. 6. THE ID. DR RELIED ON THE ORDER OR CIT. KEEPING IN MIND THE SUBMISSIONS MADE BY THE ID COUNSEL FOR THE ASSESSEE, WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE SAME TO CIT WITH THE DIRECTION TO CONSIDER THE ISSUES THAT ARISE FOR CONSIDERATION PURSUANT TO THE SHOWCAUSE NOTICE ISSUED U/S 263 OR THE ACT AFRESH AFTER AFFORDING HE ASSESSEE OPPORTUNITY OF BEING HEARD. WE MAKE IT CLEAR THAT ALL ISSUES ARE LEFT OPEN. WITH THESE OBSERVATIONS THE APPEAL OR THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. CONSISTENT WITH THE VIEW TAKEN THEREIN AS IN THIS CASE ALSO NO NOTICE WAS SERVED ON THE ASSESSEE AND THE NOTICES WERE RETURNED TO THE POSTAL AUTHORITIES WITH THE REMARK NOT FOUND AND AS THE NOTICE WAS SERVED BY AN AFFIXTURE AT THE OLD ADDRESS OF THE ASSESSEE, NO PROPER NOTICE WAS SERVED. THE ASSESSEE HAS FILED A COPY GIVING EVIDENCE THAT HE HAS FILED WITH THE ASSESSING OFFICER AN INTIMATION THAT THE ADDRESS OF THE ASSESSEE HAS CHANGED TO 7/1, C/O RUBY LAMINATIONS AND PACKAGING INDUSTRIES, BABULAL LANE, NEAR THAKUR MAHAL RESTAURANT, KOLKATA, WEST BENGAL 700 007. THE DEPARTMENT HAD ALSO SERVED NOTICES AND INTIMATION U/S 143(1) OF THE ACT AT THE NEW ADDRESS OF THE ASSESSEE ON 24/04/2012, I.E., MUCH BEFORE THE PASSING OF THE ORDER U/S 263, DT. 22/03/2013, BY THE CIT. 3 I.T.A NO. 1559/KOL/2013 ASSESSMENT YEAR: 2009-10 PATTERN JEWELLERY PVT. LTD 6. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT, FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 16 TH DAY OF JANUARY, 2019. SD/- SD/- [S.S. GODARA] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16.01.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. PATTERN JEWELLERY PVT. LTD 7/1, BABULAL LANE NEAR THAKUR MAHAL KOLKATA 700 007 2. COMMISSIONER OF INCOME TAX, KOLKATA-III, KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES