Gunjan Dealers Pvt. Ltd., Kolkata V. ITO, Ward-4(1), Kolkata, Kolkata

ITA 1572/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9537 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 03-08-2016
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL
• Keywords: Principle of natural justice
• Section: 142(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI S. S. VISWANETHRA RAVI, JM & DR. A. L . SAINI, AM] I.T.A NO.1572/KOL/2016 ASSESSMENT YEAR: 2007-08 GUNJAN DEALERS PVT. LTD. VS. INCOME-TAX OFFICER, WD-4(1), KOLKATA (PAN: AACCG5255G) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 06.01.2017 DATE OF PRONOUNCEMENT: .01.2017 FOR THE APPELLANT: SHRI A. K. TIBREWAL, FCA FOR THE RESPONDENT: SHRI SALLONG YADEN, ADDL.CIT ORDER PER DR. ARJUN LAL SAINI, AM THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2007-08, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) -2, KOLKATA IN APPEAL NO. 261/CIT(A)- 2/2014-15, DATED 31.05.2016, WHICH IN TURN ARISES O UT OF ASSESSMENT ORDER PASSED BY THE ITO, WD-4(1), KOLKATA U/S.144 OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 31.12.2009. 2. THE FACTS OF THE CASE QUA THE ASSESSEE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR AY 2007-08 ON 10.10.2007DECLARING A TOTAL LOSS OF RS.3440/-. THE RETURN OF INCOME WAS PROCESSED U/S. 143(1) OF THE ACT. LATER ON, THE CA SE WAS SELECTED FOR SCRUTINY THROUGH CASS AND THE AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT BY MAKING THE DISALLOWANCE U/S. 68 OF THE ACT. DURING THE ASSESSMENT PROCEEDI NGS NEITHER THE ASSESSEE ATTENDED THE OFFICE OF THE AO NOR HE FILED ANY WRITTEN SUBMISSI ONS AND DETAILS BEFORE THE AO, THEREFORE, THE AO HAS COMPLETED THE ASSESSMENT BY TAKING INTO ACCOUNT THE MATERIAL AVAILABLE BEFORE HIM AS PER HIS BEST JUDGMENT U/S. 144 OF THE ACT. 3. AGGRIEVED FROM THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION MADE BY THE A O OBSERVING THE FOLLOWING: DATE OF NOTICE DATE OF HEARING REMARKS 11.07.2011 19.07.2011 AS PER RECORD, NONE APPEARED 31.07.2013 03.09.2013 THE AR OF THE ASSESSEE APPEAR ED AND SEEK ADJOURNMENT. THE CASE WAS ADJOURNED FOR 09.09.2013. THE AR AGAIN APPEARED ON 09.09.2013 AS PER 2 ITA NO. 1572/KOL/2016 GUNJAN DEALERS PVT. LTD. AY. 2007-08 ORDER SHEET ENTRY AND HE WAS ASKED WHY HE DID NOT APPEAR BEFORE THE AO AND PRODUCE SUPPLEMENTARY DOCUMENTS AS REQUIRED. THE CASE WAS FURTHER ADJOURNED FOR 19.09.2013. ON 19.09.2013 NONE APPEARED FOR HEARING. 20.12.2013 08.01.2014 NOTICE WAS RETURNED BACK WITH POSTAL REMARKS NOT KNOWN 27.02.2014 05.03.2014 NONE APPEARED NOR ANY ADJOURN MENT APPLICATION FILED/RECEIVED. 20.05.2015 16.06.2015 NONE APPEARED NOR ANY ADJOURN MENT APPLICATION FILED/RECEIVED. 11.03.2016 05.04.2016 THIS NOTICE AS SENT THROUGH P ERSONAL SERVICE AND IT WAS PERSONALLY SERVED ON 14.03.2016. THE ASSESSEE APPLIED FOR ADJOURNMENT VIDE LETTER DATED NIL ON 05.04.2016 OF THE CASE AND ACCORDINGLY THE CASE WAS ADJOURNED FOR 26.05.2016. ON 26.05.2016, NONE APPEARED NOR ANY ADJOURNMENT APPLICATION FILED/RECEIVED. IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE APPELLAN T IS NOT INTERESTED IN PURSUING ANY OF ALL GROUNDS OF APPEAL. HENCE, THE APPEAL OF THE APPELLANT IS TREA TED AS DISMISSED. 4. NOT BEING SATISFIED WITH THE ORDER OF THE LD. CI T(A), THE ASSESSEE PREFERRED APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUNDS OF AP PEAL. 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-2, KOLKATA ERRED IN DISMISSING THE APPEAL FILED BY THE ASSESSEE APPELLANT COMPANY FOR ALLEGED NON-APPEARANCE WITHOUT ALLOWING REASONABLE OPPORTUNITY OF HEARING. 2. THAT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA ERRED IN CONFIRMING THE ADDITI ON OF RS.10,14,400/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT, WITHOUT DEALIN G WITH THE MERITS OF THE CASE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF THE APPEAL. 5. ALTHOUGH, IN THIS APPEAL, THE ASSESSEE HAS RAISE D THREE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE MAIN GRIEVANCE OF THE ASSES SEE HAS BEEN CONFINED TO GROUND NO.1 ONLY AND OTHER GROUNDS WERE NOT PRESSED. 6. GROUND NO. 1 RELATES TO NON-APPEARANCE BY THE AS SESSEE BEFORE THE LD. CIT(A) AND EX PARTE ORDER PASSED BY THE LD. CIT(A). 3 ITA NO. 1572/KOL/2016 GUNJAN DEALERS PVT. LTD. AY. 2007-08 6.1. THE LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DID NOT GET THE NOTICES U/S. 143(2) AND 142(1) OF THE ACT FROM THE ASSESSIN G OFFICER. THE ASSESSEE ALSO DID NOT GET NOTICES OF HEARING FROM THE LD. CIT(A). HOWEVER, T HE ASSESSEE GOT THE NOTICE OF HEARING ON TWO OCCASIONS AND ON THESE TWO OCCASIONS, THE ASSES SEE ASKED THE ADJOURNMENT AS THE DETAILS WHICH WERE TO BE SUBMITTED BEFORE LD CIT(A),WERE UN DER COMPILATION/PREPARATION. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DID NOT RECEIVE ANY OTHER NOTICE OF HEARING ISSUED BY THE OFFICE OF THE LD. CIT(A). THE LD. CI T(A) HAS PASSED THE EX PARTE ORDER WITHOUT PRESENCE OF THE ASSESSEE WHICH IS AGAINST T HE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE LD. AR FOR THE ASSESSEE REQUESTED US TO SEND TH E MATTER BACK TO THE FILE OF THE LD. CIT(A) TO READJUDICATE THE SAME AGAIN. 6.2. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS SUBMITTED THAT THE ASSESSEE HAS NEITHER APPEARED BEFORE THE AO NOR APPEARED BEFORE THE LD. CIT(A). THE ASSESSEE HAS NOT COOPERATED IN ASSESSMENT PROCEEDINGS AS WELL AS IN THE APPELLATE PROCEEDINGS, THEREFORE, HIS APPEAL SHOULD BE DISMISSED. HOWEVER, HE HAS AGREED TO SEND THE MATTER BACK TO THE FILE OF THE AO TO DO THE FRESH ASSESSMENT AFTER CONSIDERING THE ENTIRE FACTS AND THE GRIEVANCE OF THE ASSESSEE. AS THE ASSESSEE HAS OBJECTED THAT HE DID NOT RECEIVE THE STATUTORY NOTICE U/S. 143(2) OF THE ACT AND THE NOTICE U/S. 142(1) OF THE ACT AND THE AO MADE THE ADDITION BASED ON MERITS, THEREFORE, IT IS WORTHWHILE TO SEND THIS ISSUE TO THE FILE OF THE AO, SO THAT, THE AO MAY EXAMINE THIS PRIMARY ISSUE RELATING TO NON-SERV ICE OF NOTICE AND THE ADDITION MADE ON THE MERITS. THE ASSESSEE MAY SUBMIT THE DETAILS AN D EXPLANATION BEFORE THE AO BASED ON THE MERITS. HE MAY ALSO SUBMIT HIS GRIEVANCE BEFORE TH E AO FOR NON-SERVICE OF NOTICE U/S. 143(2) AND 142(1) OF THE ACT AND THE AO SHOULD BE D IRECTED TO EXAMINE THIS ISSUE. THEREFORE, CONSIDERING THIS PRIMARY ISSUE IT IS REL EVANT TO SEND BACK THE CASE TO THE FILE OF THE AO TO EXAMINE THIS PRIMARY ISSUE AND PASS THE ORDER AS PER MERIT OF THE CASE. 6.3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSI ON OF THE LD. DR FOR THE REVENUE. THE LD. DR FOR THE REVENUE HAS STATED BEFORE US THAT THE AS SESSEE HAS OBJECTED FOR NON-SERVICE OF STATUTORY NOTICES U/S. 143(2) AND 142(1) OF THE ACT . THE AO MADE THE ASSESSMENT U/S. 144 4 ITA NO. 1572/KOL/2016 GUNJAN DEALERS PVT. LTD. AY. 2007-08 BASED ON THE MATERIAL AVAILABLE BEFORE HIM AND NOW THE ASSESSEE CAN SUBMIT THE DETAILS AND EXPLANATION BEFORE THE AO AND GET THE ASSESSMENT DO NE. THEREFORE, CONSIDERING THE SUBMISSIONS OF THE LD. DR FOR THE REVENUE, WE ARE O F THE VIEW TO REMIT THE CASE BACK TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE IS SUES RELATING TO NON-SERVICE OF STATUTORY NOTICE U/S. 143(2) AND 142(1) OF THE ACT AND THE OT HER DETAILS AND SUBMISSIONS OF THE ASSESSEE. ACCORDINGLY, WE REMIT THE MATTER BACK TO THE FILE OF THE AO. 6.4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.01.2017 SD/- SD/- (S.S. VISHWANETHRA RAVI) (DR. A. L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH JANUARY, 2017 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT GUNJAN DEALERS PVT. LTD., 196/C, C. R. AVENUE, KOLKATA-700 007. 2. RESPONDENT ITO, WD-4(1), KOLKATA. 3. CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .