Calcutta Terene Centre, Kolkata V. ITO, Ward - 34(3), Kolkata, Kolkata

ITA 169/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48070 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 25-01-2011
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . . !' ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] # # # # / I.T.A NO. 169/KOL/2011 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR: 2005-06 CALCUTTA TERENE CENTRE VS INCOME-TAX OFFICER, W D-34(3), KOLKATA (PAN-AABFC 8668 D) ( )* /APPELLANT ) (+,)*/ RESPONDENT ) FOR THE APPELLANT: SHRI SUBHASH AGARWAL FOR THE RESPONDENT: SHRI S. K. MALAKAR !- / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-XX, KOLKATA IN APPEAL NO.403/CIT(A)-XX/WD-34(3)/07-08/KOL DATED 01 .12.2010. THE ASSESSMENT WAS FRAMED BY ITO, WARD-34(3), KOLKATA U/S.143(3) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEAR 2005-06 VIDE HIS ORDER DATED 24.12.2007. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING AN EX-PARTE ORDER AND NOT GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE FIRM. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY THE A. O. ON ACCOUNT OF INTEREST ON LOAN TO THE TUNE OF RS. 1,20,000/- BEING 12% OF RS. 10 LAKHS. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF RS. 4,63,300/- OUT OF THE TOTAL PURCHASES DEBITED IN THE ACCOUNT. 4. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CTT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,44,051/ M ADE BY THE A.O. UNDER THE HEAD COMMISSION PAID. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT CIT(A) WAS NOT JUSTIFIED IN PASSING AN EX PARTE ORDER AS HE HAS NOT PROVIDED RE ASONABLE OPPORTUNITY OF BEING HEARD 2 ITA 169/K/2011 CALCUTTA TERENE CENTRE. A.Y. 05-06 TO THE ASSESSEE. HE NARRATED THE FACT THAT AS PER THE ORDER OF CIT(A), THE FIRST HEARING WAS FIXED ON 19.10.2010, FOR WHICH NOTICE WAS NOT S ERVED ON THE ASSESSEE. FURTHER, HEARING WAS FIXED ON 23.11.2010 BUT NO NOTICE WAS S ERVED ON THE ASSESSEE. HENCE, CIT(A) PASSED AN EX PARTE ORDER CONFIRMING THE ACTI ON OF THE ASSESSING OFFICER IN RESPECT OF ALL THE THREE ADDITIONS AS CONTESTED IN THE GROUNDS OF APPEAL. ACCORDINGLY, LD. COUNSEL FOR THE ASSESSEE STATED THAT LET THE CIT(A) PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE BY PASSING A SPEAKING ORDER AND URGED THE BENCH TO SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A). ON THE OTHER HAND, LD. DR HAS NOT OBJECTED TO THE SETTING ASIDE OF THE APPEAL TO THE FILE OF THE CIT(A). 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE ORDER OF CIT(A) THAT TH E ORDER ITSELF IS A NON-SPEAKING ONE AND PASSED EX PARTE WITHOUT PROVIDING OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. NO DOUBT THE CIT(A) HAS ISSUED NOTICE TWICE BUT WERE N OT SERVED ON THE ASSESSEE. IN VIEW OF THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VI EW THAT CIT(A) SHOULD PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AFTER SERVING NOTICE ON THE ASSESSEE. THE CIT(A), NEEDLESS TO SAY WILL PASS A SPEAKING ORDER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. ACCORDINGLY , THIS APPEAL OF THE ASSESSEE IS SET ASIDE TO THE FILE OF THE CIT(A) AND ALLOWED FOR STA TISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED 19TH DAY OF APRIL, 2011 ./ $01 2 JD.(SR.P.S.) 3 ITA 169/K/2011 CALCUTTA TERENE CENTRE. A.Y. 05-06 !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT CALCUTTA TERENE CENTRE, C/O, RAMESH CH ANDRA & CO., 156, JAMUNA LAL BAJAJ STREET, 1ST FLOOR, KOLKA TA-700 007 2 +,)* / RESPONDENT ITO, WARD-34(3), KOLKATA. 3 . -$ ( )/ THE CIT(A), KOLKATA 4. 5. -$ / CIT KOLKATA 4 <= +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$>/ BY ORDER, 1 /ASSTT. REGISTRAR .