M/s Ginodia Construction Pvt. Ltd., Kolkata V. I.TO.,Ward-9(2), Kolkata

ITA 1686/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7535 (ITAT-KOLKATA)
• Duration Of Justice: 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Assessment record; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B(SMC), BENCH KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1686/KOL/2019 ( / ASSESSMENT YEAR:2009-10) M/S GINODIA CONSTRUCTION PVT. LTD. MERCANTILE BUILDING, 1 ST FLOOR, 9/12, LAL BAZAR STREET, KOLKATA- 700001. VS. ITO, WARD-9(2), KOLKATA ./ ./PAN/GIR NO.: AABCG 1560 H (ASSESSEE) .. (REVENUE) ASSESSEE BY :SHRI SOUMITRA CHOUDHURY, ADVOCATE RESPONDENT BY : SHRI ROBIN CHOUDHURY, ADDL. CIT SR. D.R. / DATE OF HEARING : 19/07/2019 /DATE OF PRONOUNCEMENT : 26/07/2019 / O R DE R PER DR. A. L. SAINI: THIS APPEAL LISTED FOR HEARING TODAY I.E.19.7.20 19 FOR CONSIDERATION OF GRANT OF EARLY HEARING. HOWEVER, WITH THE CONSENT OF BOTH THE PARTIES, THE RELATED APPEAL ITSELF HAS BEEN HEARD TODAY AND AS SUCH THE REQUEST FOR EARLY HEARING IS DISMISSED AS INFRACTUOUS. 2. THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST THE ORDER PASSED B Y THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 28/12/2016. M/S GINODIA CONSTRUCTION PVT. LTD. ITA NO.1686/KOL/2019 ASSESSMENT YEAR:2009-10 P PP PA AA AG GG GE EE E | || | 2 22 2 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED BEFORE THE BENCH THAT THE ASSESSING OFFICER PASSED AN ORDER U/S 144 OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDE R THEREFORE THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE THE ASSESSING OFFICER THE REFORE ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD. ASSESSING OFFICER. ON THE OTHER HAND, THE LD. D.R. FOR THE REVENUE DID NOT HAVE ANY OBJECTION IF THE CASE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE ARE OF THE OPINION THAT NO PROPER OPPORTUNITY WA S GIVEN TO THE ASSESSEE DURING THE ASSESSMENT STAGE ITSELF. SINCE THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS WE ARE INCLINED TO REMAND THE ISSUE BACK TO THE ASSESSING OFFICER. WE NOTE THAT LD. CIT(A), WHILE ADJUDICATING THE APPEAL, DID NOT CONSIDER THE ASSESSMENT RECORDS . THE LD. CIT(A) ALSO DID NOT PASS ORDER ON MERITS BASED ON THE RECORDS AVAILABLE BEFORE HIM. THEREFORE, WE ARE OF THE VIEW, THAT ONE MORE OPPORTUNITY SHOULD BE GI VEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD ASSESSING OFFICER. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE ISSUE BACK TO THE FILE OF LD. CIT(A). IN VIEW OF THE ABOVE, WE DIRECT THE ASSESSEE TO APP EAR BEFORE THE AO WITH A COPY OF' THIS ORDER ON 9TH SEPTEMBER, 2019 AND THE AO WI LL BE AT LIBERTY TO FIX THE DATE OF HEARING THEREAFTER AND FRAME ASSESSMENT DE NOVO IN ACCORDANCE TO LAW AFTER HEARING THE ASSESSEE AND THE ASSESSEE TO PARTICIPAT E DILIGENTLY AND PRODUCE DOCUMENTS AS DIRECTED BY THE AO TO SUBSTANTIATE HIS CASE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 26.07.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 26/07/2019 ( SB, SR.PS ) M/S GINODIA CONSTRUCTION PVT. LTD. ITA NO.1686/KOL/2019 ASSESSMENT YEAR:2009-10 P PP PA AA AG GG GE EE E | || | 3 33 3 COPY OF THE ORDER FORWARDED TO: 1. M/S GINODIA CONSTRUCTION PVT. LTD. 2. ITO, WARD-9(2), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES