Ganeshvani Management Services Pvt. Ltd., Kolkata V. ITO, Ward 1(1), Kolkata, Kolkata

ITA 167/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1171 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 02-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: M D SHAH
• Keywords: Principle of natural justice
• Section: 131

Judgement Text

1 ITA NO.167/KOL/2017 GANESHVANI MANAGEMENT SERVICE PVT. LTD., AY- 2012-1 3 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 167/KOL/2017 ASSESSMENT YEAR: 2012-13 GANESHVANI MANAGEMENT SERVICE PVT. LTD. (PAN: AAECG5863C) VS. INCOME-TAX OFFICER, WARD-1(1), KOL. APPELLANT RESPONDENT DATE OF HEARING 08.03.2018 DATE OF PRONOUNCEMENT 28.03.2018 FOR THE APPELLANT SHRI M. D. SHAH, AR FOR THE RESPONDENT SHRI ARINDAM BHATTACHARJEE, ADDL . CIT ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF LD. CIT(A)-1, KOLKATA DATED 07.12.2016 FOR AY 2012-13. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR ASSESS EE DREW OUR ATTENTION TO THE FACT THAT THE IMPUGNED APPELLATE ORDER OF LD. CIT(A) IS AN EX PA RTE ORDER AND, THEREFORE, THERE IS VIOLATION OF NATURAL JUSTICE. THE LD. DR SUPPORTED THE DECISIONS OF AUTHORITIES BELOW AND DOES NOT WANT US TO INTERFERE WITH THE IMPUGNED ORD ER. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE NOTE THAT THE LD. CIT(A) HAS FIXED THE HEARING ON TWO DATES ONLY I.E. ON 23.08.2016 AND 06.12.2016 AND PASSED THE IMPUGNED EX PARTE ORDER ON NEXT DAY I.E ON 07.12.2016. WE NOTE FROM THE AFFIDAVIT FILED BY THE ASSESSEE THAT ASSESSEE DID N OT GET A COPY OF THE NOTICE OF HEARING FROM LD. CIT(A), THEREFORE, IT COULD NOT ATTEND THE HEAR ING BEFORE THE LD. CIT(A). IN THE AFORESAID FACTS DISCUSSED ABOVE, WE ARE OF THE OPIN ION THAT ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE LD. CIT(A). 4. MOREOVER, WE NOTE ON A PERUSAL OF THE ASSESSMENT ORDER THAT SUMMON U/S. 131 OF THE INCOME-TAX ACT, 1961 WAS ISSUED BY AO ON 16.02.2015 ASKING THE ASSESSEE COMPANY TO 2 ITA NO.167/KOL/2017 GANESHVANI MANAGEMENT SERVICE PVT. LTD., AY- 2012-1 3 PRODUCE ITS DIRECTORS ALONG WITH CERTAIN DETAILS. HOWEVER, AO TAKING NOTE THAT NO DIRECTORS OF THE ASSESSEE COMPANY APPEARED BEFORE HIM, SADDLE D THE ENTIRE SHARE CAPITAL OF RS.1,46,00,000/- U/S. 68 OF THE ACT. THE LD. AR DR EW OUR ATTENTION TO THE FACT THAT WHEN SUMMON WAS ISSUED TO THE DIRECTOR OF THE ASSESSEE (SHRI SURESH PRAKASH GUPTA) HE WAS UNWELL AND COULD NOT ATTEND THE HEARING. AN AFFIDA VIT OF THE DIRECTOR OF THE ASSESSEE COMPANY EXPLAINING HIS ABSENCE PURSUANT TO THE SUMM ON ISSUED BY THE AO HAS BEEN ALSO PERUSED BY US. IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE COULD NOT GET PROP ER OPPORTUNITY BEFORE THE AO, THEREFORE, WE SET ASIDE THE EX PARTE ORDER OF THE LD. CIT(A) A ND REMAND THE MATTER BACK TO AO TO ASSESS AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE IN ACCORDANCE TO LAW. WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE T HE AO DILIGENTLY AND PARTICIPATE IN THE PROCEEDINGS AND PURSUE THE SAME IN ACCORDANCE TO LA W. THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.03.2018 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28TH MARCH, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. GANESHVANI MANAGEMENT SERVICE P VT. LTD., C/O, D. J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-7 00 020. 2 RESPONDENT ITO, WARD-1(1), KOLKATA. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY