Chandrika Dealcom Pvt. Ltd., , Kolkata V. ITO, Ward - 9(3), Kolkata, Kolkata

ITA 1563/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7531 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 30-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S HALDER
• Assessee Lawyers: M D SHAH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER] I.T.A. NO. 1563/KOL/2017 ASSESSMENT YEAR: 2012-13 CHANDRIKA DEALCOM PVT. LTD..........APPELLANT C/O D.J. SHAH & CO. KALYAN BHAVAN 2 ELGIN ROAD KOLKATA 700 020 [PAN : AABCC 0334 M] INCOME TAX OFFICER, WD-9(3), KOLKATA............................................RESPONDENT APPEARANCES BY: SHRI M.D. SHAH, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI S. HALDER, SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 19 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 16 TH , 2019 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE ASSESSE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 16, KOLKATA, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 27/03/2017, FOR THE ASSESSMENT YEAR 2012-13. 2. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 3. WE FIND THAT THE HEARING OF THIS APPEAL WAS FIXED ON 23/12/2016, VIDE NOTICE DT. 20/12/2016, BEFORE THE LD. CIT(A). THE NOTICE WAS DISPATCHED BY THE OFFICE OF THE LD. CIT(A) ON 24/12/2016, VIDE SPEED POST NO. RW 879008566 IN, AND WAS DELIVERED AT THE CONCERNED HPO (BARABAZAR HPO), ON 25/12/2016. THE NOTICE OF HEARING WAS NOT SERVED ON THE ASSESSEE. HENCE THERE WAS VIOLATION OF PRINCIPLES 2 I.T.A. NO. 1563/KOL/2017 ASSESSMENT YEAR: 2012-13 CHANDRIKA DEALCOM PVT. LTD OF NATURAL JUSTICE AT THE STAGE OF ASSESSMENT. THE LD. CIT(A) HAS NOT DISPOSED OFF THE CASE ON MERITS. 3.1. WE, THEREFORE, FIND THAT THE ASSESSING OFFICER IN THIS CASE HAS ISSUED SUMMONS U/S 131(1) TO THE DIRECTORS/INVESTORS OF THE ASSESSEE COMPANY ON 10/02/2015 AND ON THE ROUND THAT THEY HAVE NOT APPEARED, PASSED AN ASSESSMENT ORDER ON 13/03/2015. THE ASSESSEE HAS DEMONSTRATED THAT NOTICE U/S 131 OF THE ACT, WERE NOT SERVED ON THE DIRECTORS/INVESTORS AND HENCE THERE WAS NO COMPLIANCE. IT WAS PLEADED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 3.2. THE LD. D/R, THOUGH NOT LEAVING HIS GROUND, ULTIMATELY SUBMITTED THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER AS CERTAIN INVESTIGATIONS NEED TO BE COMPLETED. 4. IN VIEW OF THE ABOVE SUBMISSIONS, WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, ON THE GROUNDS OF NATURAL JUSTICE, SUBJECT TO THE PAYMENT OF COST OF RS.5,000/- (RS. TEN THOUSAND ONLY) BY THE ASSESSEE IN FAVOUR OF PRIME MINISTER RELIEF FUND, FOR HAVING NOT APPEARED BEFORE THE LD. CIT(A) AS WELL AS BEFORE US IN THIS PROCEEDING. THE ASSESSING OFFICER SHALL VERIFY THE SAID PAYMENT BY THE ASSESSEE AND THEREAFTER PROCEED TO DISPOSE OFF THE CASE ON MERITS. FOR THIS PROPOSITION TO LEVY COSTS, WHILE CONDONING THE ACTIONS OF THE ASSESSEE AS REASONABLE, WE RELY ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE IN ITA NO. 493 OF 2015 & 508 OF 2015, DT. SEPTEMBER 19, 2017, WHEREIN AT PARA 11, IT HAS BEEN HELD AS FOLLOWS:- 11. WE DO NOT FIND THAT ANY OF THESE DECIDED CASES HAVE ANY APPLICATION TO THE FACTS BEFORE US. WE HAVE IMPOSED THE COSTS NOT BECAUSE THE APPELLANT WAS NOT ACTING BONA FIDE BUT FINDING THAT EVEN AFTER THE LEGAL ADVICE WAS OBTAINED, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THERE WAS TIME WHICH WAS CONSUMED AND IN ALL THIS DELAY OF 2984 DAYS OCCURRED. WHILE CONDONING SUCH DELAY, IT IS PERMISSIBLE FOR COURT, IN ITS DISCRETION, TO IMPOSE 3 I.T.A. NO. 1563/KOL/2017 ASSESSMENT YEAR: 2012-13 CHANDRIKA DEALCOM PVT. LTD COSTS. EVENTUALLY, THE RIGHTS AND EQUITIES HAVE TO BE BALANCED. TO RENDER SUBSTANTIAL JUSTICE AND NOT TO ENRICH THE REVENUE THAT THE COSTS HAVE BEEN IMPOSED. IT IS NOT, THEREFORE, A CASE WHERE THE STATE HAS BEEN ALLOWED TO RETAIN ANY BENEFIT OR HAS BEEN BENEFITED BY ANY DIRECTIONS. IT IS THE COURT WHICH IN ITS DISCRETION HAS IMPOSED THIS CONDITION. WE DO NOT FIND ANY BASIS TO ALTER IT. THE REQUEST IN THAT BEHALF IS REFUSED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 16 TH DAY OF JANUARY, 2019. SD/- SD/- [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16.01.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. CHANDRIKA DEALCOM PVT. LTD C/O D.J. SHAH & CO. KALYAN BHAVAN 2 ELGIN ROAD KOLKATA 700 020 2. INCOME TAX OFFICER, WD-9(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES