Mentor Insurance Brokers Pvt. Limited , Kolkata V. ITO, Ward - 9(1), Kolkata , Kolkata

ITA 1581/KOL/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0711 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Assessee Lawyers: D S DAMLE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM ITA NO.1581/KOL/2017 (ASSESSMENT YEAR: 2012-13) MENTOR INSURANCE BROKERS PVT. LTD. 161/1, MAHATMA GANDHI ROAD, 2 ND FLOOR, ROOM NO.40, KOLKATA 700 007. VS. ITO, WARD-9(1), KOLKATA P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AABCM 8132 F ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI D. S. DAMLE, FCA REVENUE BY : SHRI G. HANGSHING, CIT(DR) / DATE OF HEARING : 19/07/2018 /DATE OF PRONOUNCEMENT: 03/10/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA IN APPEAL NO.61/CIT(A)-12/KOL/WARD-9(1)/2016-17, DATED 31.03.2017, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE HAD NOT RECEIVED ANY NOTICE OF HEARING DURING APPELLATE PROCEEDINGS THEREFORE, THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE LD. CIT(A), AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST MENTOR INSURANCE BROKERS PVT. LTD. ITA NO.1581/KOL/2017 ASSESSMENT YEAR: 2012-13 2 THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER STATING THE FOLLOWING: 3. NEITHER THE APPELLANT NOR THE A/R OF THE APPELLANT APPEARED BEFORE THE UNDERSIGNED TO REPRESENT THE CASE ON 31.03.2017. EVEN NO WRITTEN SUBMISSION WAS FILED IN THE OFFICE OF THE UNDERSIGNED IN FAVOUR OF ITS APPEAL. BESISES, NO COMMUNICATION HAS BEEN MADE FROM THE END OF THE CONCERNED ASSESSING OFFICER THAT THE HEARING NOTICE HAS BEEN SERVED UPON THE APPELLANT. BOTH THE APPELLANT AND THE ASSESSING OFFICER REMAINED SILENT IN RESPECT OF THIS APPEAL PENDING BEFORE THE UNDERSIGNED TO DISPOSE OF. 4.UNDER THE CIRCUMSTANCES, IT IS PRESUMED THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THIS APPEAL AND IT HAS NOTHING TO SAY IN DEFENCE OF THE GROUND OF APPEAL TAKEN. THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 4. WE NOTE THAT THE ASSESSEE HAS RAISED GROUND NO.1 STATING AS FOLLOWS: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS UNJUSTIFIED IN DISMISSING THE APPEAL FILED BY THE APPELLANT AGAINST ORDER U/S 143(3), NO NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE. THE ORDER WAS PASSED WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE AND IS ARBITRARY, ILLOGICAL, BAD IN LAW, UNJUSTIFIED AND FACT LESS. WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . THE LD COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US AS AFFIDAVIT TO SUBSTANTIATE HIS STAND, VIDE PARA NO.3 OF THE AFFIDAVIT, WHICH READS AS UNDER: 3) WE HEREBY CONFIRM THAT THE COMPANY HAS NOT RECEIVED ANY NOTICE OF HEARING FROM THE COMMISSIONER OF INCOME TAX APPEALS-12 AND THE SAID APPEAL WAS DISPOSED OFF EX-PARTY WITHOUT GIVING AN OPPORTUNITY OF HEARING. SINCE, THE ASSESSEE HAD NOT RECEIVED NOTICE OF HEARING FROM THE LD CIT(A), THEREFORE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT(A). MENTOR INSURANCE BROKERS PVT. LTD. ITA NO.1581/KOL/2017 ASSESSMENT YEAR: 2012-13 3 5. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEED IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/10/2018. SD/- (A. T. VARKEY) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:03/10/2018 RS, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- MENTOR INSURANCE BROKERS PVT. LTD. 2. / THE RESPONDENT.- ITO, WARD-9(1), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .