Avinash Kumar Agarwal , Kolkata V. ITO, Ward - 22(4), Kolkata , Kolkata

ITA 1671/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1671 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 03-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA NO. 1671/KOL/2018 ASSESSMENT YEA R: 2014-2015 AVINASH KUMAR AGARWAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 1671/KOL/2018 ASSESSMENT YEAR: 2014-2015 AVINASH KUMAR AGARWAL,............................. ..............................APPELLANT 20A, BAGUIATI 2 ND LANE, LATIKA PROVA, 3 RD FLOOR, AAM BAGAN, KOLKATA-700 059 [PAN: AGZPA 1670 M] VS.- INCOME TAX OFFICER,.................... ..............RESPONDENT WARD-22(4), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, 4 TH FLOOR, KOLKATA-700 028 APPEARANCES BY: N O N E, FOR THE APPELLANT SHRI SATYAJIT MONDAL, ADDL. CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : NOVEMBER 22, 2018 DATE OF PRONOUNCING THE ORDER : NOVEMBER 22, 2018 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA DAT ED 18.05.2018 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS PRACTISING AS A CHARTERED ACCOUNTANT. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 27.03.2015 DECLAR ING TOTAL INCOME OF RS.3,75,380/-. IN THE ASSESSMENT COMPLETED UNDER SE CTION 143(3) VIDE AN ORDER DATED 27.12.2016, THE TOTAL INCOME OF THE ASS ESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.11,58,322/- AFTER MA KING AN ADDITION OF RS.7,82,938/- BY DISALLOWING THE CLAIM OF THE ASSES SEE FOR EXEMPTION ON ACCOUNT OF LONG-TERM CAPITAL GAIN UNDER SECTION 10( 38) OF THE ACT. ITA NO. 1671/KOL/2018 ASSESSMENT YEA R: 2014-2015 AVINASH KUMAR AGARWAL 2 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 18.05.2018 PASSED EX-PARTE FOR NON-PROSECUTION. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 4. AT THE TIME OF HEARING BEFORE THE TRIBUNAL FIXED TODAY, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICAT ION SEEKING ADJOURNMENT HAS BEEN FILED. THIS APPEAL OF THE ASSE SSEE IS, THEREFORE, BEING DISPOSED OF EX-PARTE AFTER HEARING THE ARGUME NTS OF THE LD. D.R. AND PERUSING THE RELEVANT MATERIAL AVAILABLE ON RECORD. 5. IN GROUND NO. 2, THE ASSESSEE HAS RAISED A PRELI MINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CI T(APPEALS) EX-PARTE ON THE GROUND THAT PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(APPEALS). IN THIS REGARD, IT IS NOTED FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) THAT THE NOT ICE SENT FIXING THE APPEAL OF THE ASSESEE FOR HEARING INITIALLY ON 16.0 3.2018 WAS RETURNED BY THE POSTAL AUTHORITY UNDELIVERED WITH THE REMARK A DDRESSEE NOT AVAILABLE AT THE TIME OF DELIVERY. THE LD. CIT(APP EALS) AGAIN FIXED THE HEARING ON 27.03.2018 AND ALTHOUGH THE NOTICE OF TH E SAID HEARING WAS SERVED ON THE ASSESSEE, THE ASSESSEE SOUGHT ADJOURN MENT. THE HEARING ACCORDINGLY WAS ADJOURNED BY THE LD. CIT(APPEALS) T O 17.05.2018 AND SINCE NONE ATTENDED ON BEHALF OF THE ASSESSEE ON 17 .05.2018, HE DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPEL LATE ORDER DATED 18.05.2018 PASSED EX-PARTE FOR NON-PROSECUTION ON T HE PART OF THE ASSESSEE. KEEPING IN VIEW ALL THESE FACTS BORNE OUT FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS), I AM OF THE VIEW THA T THE ASSESSEE CANNOT BE SAID TO HAVE GIVEN PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD BY THE ITA NO. 1671/KOL/2018 ASSESSMENT YEA R: 2014-2015 AVINASH KUMAR AGARWAL 3 LD. CIT(APPEALS) BEFORE DISMISSING THE APPEAL EX-PA RTE FOR NON- PROSECUTION AND EVEN THE LD. D.R. HAS NOT DISPUTED THIS POSITION. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) PASSED EX- PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSIN G OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 22, 2018. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 22 ND DAY OF NOVEMBER, 2018 COPIES TO : (1) SHRI AVINASH KUMAR AGARWAL, 20A, BAGUIATI 2 ND LANE, LATIKA PROVA, 3 RD FLOOR, AAM BAGAN, KOLKATA-700 059 (2) INCOME TAX OFFICER, WARD-22(4), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, 4 TH FLOOR, KOLKATA-700 028 (3) COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.