Dr. Om Prakash Agarwal, Kolkata V. ITO, WD-55(1), KOLKATA, Kolkata

ITA 1827/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100239 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: NEHA PATODIA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NO.1827/KOL/2014 ASSESSMENT YEAR: 2009-10 DR. OM PRAKASH AGARWAL VS. INCOME-TAX OFFICER, W D-55(1), KOLKATA (AFJPK7012C) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 11.12.2015 DATE OF PRONOUNCEMENT: 11.12.2015 FOR THE APPELLANT: MS. NEHA PATODIA FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. DR ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA VIDE APPEAL NO. 419/CIT(A)-XXXVI/KOL/ITO,WD-55(1)/KOL/20 11-12/366 DATED 24.07.2014. ASSESSMENT WAS FRAMED BY ITO, WARD-55( 1), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR ASSESSMENT YEAR 2009- 10 VIDE HIS ORDER DATED 26.12.2011. 2. AT THE OUTSET, IT IS NOTICED THAT THE ORDER OF C IT(A) IS EX PARTE ORDER AND APPEAL WAS DECIDED BY CIT(A) WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS IS THE FIRST ISSUE IN THE ASSESSEE S APPEAL RAISED BY WAY OF FOLLOWING GROUND NOS. 1 AND 2: 1. THAT THE ORDERS PASSED BY THE LOWER AUTHORITIE S ARE ARBITRARY, ERRONEOUS, WITHOUT PROPER REASONS, INVALID AND BAD IN LAW TO THE EXTEN T TO WHICH THEY ARE PREJUDICIAL TO THE INTERESTS OF THE APPELLANT. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED AND PROPER IN PASSING THE APPELLATE ORDER EX PARTE, WHEREAS THE A/R OF THE APPELLANT HAS APPEARED IN AL L THE DATE/OCCASION AND REPRESENTED THE CASE. 2.1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN RECORD ING NONE APPEARED FOR APPELLANT, ON 24.06.2014 AT 11.30 AM I.E. THE LAST NOTICE OF HEAR ING BUT THE LD. CIT(A) HIMSELF WAS NOT AVAILABLE IN HIS CHAMBER. 3. WHEN THIS WAS POINTED OUT TO LD. SR. DRAND ARTI CLE CLERK OF THE CONCERNED CHARTERED ACCOUNTANT, THE REPRESENTATIVE OF THE ASS ESSEE, WHO CAME FOR ADJOURNMENT, BOTH FAIRLY CONCEDED THAT IN ANY CASE, THE ISSUE NE EDS RECONSIDERATION AT THE LEVEL OF THE CIT(A) OR AO. THE LD. COUNSEL I.E. ARTICLE CLERK OF THE CHARTERED ACCOUNTANT STATED 2 ITA NO.1827/K/2014 DR. OM PRAKASH AGARWAL AY 2009-10 THAT THE ASSESSEE IS A MEDICAL PRACTITIONER BY PROF ESSION AND HE IS A BRITISH CITIZEN HOLDING CERTIFICATE OF REGISTRATION AS BRITISH CITI ZEN DATED 22.11.1994. THE ASSESSEE WAS IN SERVICE IN UK FOR MANY YEARS BEFORE RETURNING TO INDIA AND GETTING RETIREMENT BENEFIT I.E. PENSION FROM UK GOVERNMENT AND IS TAXED IN UK AND OTHER RELATED ISSUES. ACCORDING TO THE ARTICLE CLERK MISS. NEHA PATODIA, THE ISSUE IF REMITTED BACK TO THE FILE OF AO THAT WILL SERVE THE PURPOSE BECAUSE, IN ANY C ASE, THE CIT(A) HAS TO SEEK REMAND REPORT FROM THE AO ON THE FRESH EVIDENCE. ON THIS, LD. SR. DR HAS NOT OBJECTED. 4. I AFTER CONSIDERING THE ISSUE IN ENTIRETY FEEL T HAT LET THE APPEAL OF THE ASSESSEE IS SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND TO FILE ADDITIONAL EVIDENCE IF HE FEEL SO. ACCORDINGLY, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPO SES. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.12.2 015 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED :11TH DECEMBER, 2015 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DR. OM PRAKASH AGARWAL, 5B, ADITI, 11/1A, BALLYGUNGE CIRCULAR ROAD, KOLKATA-19. 2 RESPONDENT ITO, WD-55(1), KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .