Sanchit Sachdev , Kolkata V. ITO, Ward - 63(1), Kolkata , Kolkata

ITA 1617/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4810 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL ACIT
• Assessee Lawyers: R C JHAWAR
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

1 ITA NO.1617/KOL/2018 SANCHIT SACHDEV AY- 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH, SMC AT KOLKATA () . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1617/KOL/2018 ASSESSMENT YEAR: 2012-13 SANCHIT SACHDEV (PAN: DDZPS7905B) VS. ITO, WARD-63(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 21.02.2019 DATE OF PRONOUNCEMENT 17.05.2019 FOR THE APPELLANT SHRI R. C. JHAWAR, CA FOR THE RESPONDENT SHRI SATYAJIT MONDAL, ACIT, SR. DR ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) 19, KOLKATA DATED 02.05.2018 FOR ASSESSMENT YEAR 2012-1 3. 2. AT THE OUTSET, THE LEARNED AR DREW OUR ATTENTION TO THE FACT THAT THE EX-PARTE ASSESSMENT ORDER PASSED BY THE AO 24.03.2015 U/S. 1 43(3)/144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE LE ARNED AR DREW OUR ATTENTION TO THE FACT THAT THE NOTICE WAS RECEIVED BY THE ASSESSEE ON THE EVENING OF 20.03.2015 AND THE DATE OF HEARING WAS FIXED ON 23.03.2015 AND 21 ST AND 22 ND MARCH, 2015 WAS SATURDAY AND SUNDAY. ACCORDING TO LD. AR, WHEN ASSESSEE ALONG WITH HIS A R WENT TO THE OFFICE OF THE ITO TO ATTEND THE HEARING ON 23.03.2015 THEN TO THEIR SURP RISE THEY WERE TOLD THAT ASSESSMENT HAS ALREADY BEEN FRAMED AGAINST THE ASSESSEE. ACCORDING TO LD. AR, THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO TO REPRESENT HIS C ASE. THEREFORE, CITING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX CO MPANY VS. CIT (2001) 249 ITR 216 (SC), THE LD. AR PLEADS THAT THE MATTER BE REMANDED BACK TO THE AO FOR FRESH ADJUDICATION. THE LD. CIT, DR OPPOSED THE REMANDING OF THE PROCEE DINGS, HOWEVER, CONTENDED THAT EVEN IF THE TRIBUNAL REMANDS THE MATTER BACK TO AO, THE LD. COUNSEL SHOULD UNDERTAKE TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE AO. 2 ITA NO.1617/KOL/2018 SANCHIT SACHDEV AY- 2012-13 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, WE NOTE THAT THE AO MADE THE ASSESSMENT U/S. 143(3)/144 OF THE ACT. WE FURT HER NOTE THAT THE NOTICE DATED 19.03.2015 WAS RECEIVED BY THE ASSESSEE ON THE EVENING OF 20.0 3.2015 AND THE DATE OF HEARING WAS FIXED ON 23.03.2015 AND THE NEXT TWO DAYS WERE HOLI DAYS (I.E. 21 ST AND 22 ND MARCH, 2015 WAS SATURDAY AND SUNDAY). AND WHEN THE LD. AR ACCOM PANIED BY THE ASSESSEE PROMPTLY APPEARED ON 23.03.2015 BEFORE THE AO ALONG WITH THE DOCUMENTS AND EXPLANATION TO THE QUERY RAISED IN THE NOTICE DATED 19.03.2015, TO THE IR ASTONISHMENT WAS TOLD THAT THE ASSESSMENT AGAINST THE ASSESSEE HAS ALREADY BEEN FR AMED BY THE AO BY ADDING THE ENTIRE DEPOSIT IN THE BANK ACCOUNTS, WHICH ACTION OF AO AC CORDING TO LD. AR IS IN GROSS VIOLATION OF NATURAL JUSTICE. THEREFORE, THE LD. AR PLEADS T HAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO TO REPRESENT HIS CASE. AC CORDING TO LD. AR, GIVEN AN OPPORTUNITY, THE ASSESSEE IS READY TO PARTICIPATE A ND PRODUCE ALL THE DOCUMENTS TO REPRESENT HIS CASE PROPERLY BEFORE THE AO, THEREFORE, CITING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TIN BOX COMPANY (SUPRA), THE ASSESSEE P LEADS THAT THE MATTER MAY BE REMANDED BACK TO THE AO SINCE THERE WAS NO PROPER OPPORTUNIT Y TO DISCHARGE THE ONUS UPON THE ASSESSEE. WE NOTE THAT THE HONBLE SUPREME COURT I N TIN BOX COMPANY, SUPRA HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF T HE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT READS TH US : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. 3 ITA NO.1617/KOL/2018 SANCHIT SACHDEV AY- 2012-13 THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 4. SINCE WE NOTE THAT THE ASSESSEE COULD NOT GET PROPER OPPORTUNITY BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS, IN THE INTEREST OF JUSTICE AND FAIR PLAY THE MATTER IS REMANDED BACK TO THE FILE OF AO FOR FRESH ADJUDICAT ION IN ACCORDANCE TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND THE ASSESSEE IS DIRECTED TO COOPERATE AND PARTICIPATE IN THE PROCEEDINGS DILIG ENTLY BEFORE THE AO WITHOUT FAIL. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17TH MA Y, 2019 SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 17TH MAY, 2019 JD (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI SANCHIT SACHDEV, 15, BALLYGANJ PAR K ROAD, KOLKATA-700 019. 2 RESPONDENT ITO, WARD-63(1), KOLKATA. 3 . THE CIT(A)-19, KOLKATA. (SENT THROUGH E-MAIL) 4. 5. CIT , KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA