M/s. Fulfill Vinimay Private Limited , Kolkata V. ITO, Ward - 1(1), Kolkata , Kolkata

ITA 1840/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2767 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER JCIT LD
• Assessee Lawyers: P K HIMMAT SINGHKA LD
• Keywords: Opportunity of being heard; Assessment record; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, KOLKATA BEFORE SHRI A.T, VARKEY , JM & DR. A.L. SAINI, AM ITA NO. 1 840 /KOL/2018 A.Y 20 09 - 10 M/S. FULFILL VINIMAY PVT. LTD PAN: AABCFO 509K VS. I.T.O WARD 1(1), KOLKATA ( / APPELLANT) .. ( / RESPONDENT) APPELLANT BY : SHRI P.K. HIMMAT SINGHKA , LD.AR REVENUE BY : SHRI SHANKAR HALDER, JCIT, LD. SR.DR / DATE OF HEARING : 2 4 - 04 - 2019 / DATE OF PRONOUNCEMENT: 12 - 0 6 - 2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 20 09 - 10 , IS DIRECTED AGAINST THE ORDER DATED 30 - 11 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 4 , KOLKATA, WHICH IN TURN ARISES OUT OF AN A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER [ITO, WARD 1 (1), KOLKATA] U/S. 263/ 143(3) OF THE INCOME - TAX ACT, 1961 ( IN SHORT THE ACT) DATED 28 .03.201 4. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 3. AT THE OUTS ET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT( A ) AND THE LD. CIT( A ) PASSED AN EX - PARTE ORDER . BY AN AFFIDAVIT DT. 23 APRIL 2019 THE ASSESSEE STATED THE RE ASONS OF NON - COMPLIANCE BEFORE THE LD. CIT(A) AS UNDER: ITA NO. 1840/KOL/2018 M/S. FULFILL VINIMAY P.LTD 2 5. THAT MR. ASHISH BANERJEE WAS APPOINTED AS THE AUTHORISED REPRESENTATIVE TO APPEAR AND REPRESENT THE CASE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 14/KOLKATA. 6. THAT I WAS UNDER THE BONA FIDE BELIEF THAT PROPER COMPLIANCES WERE MADE FROM THE END OF THE SAID AUTHORISED REPRESENTATIVE. 7. THAT AFTER RECEIPT OF THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 14/KOLKATA DT. 09/07/2018, IT CAME TO OUR KNOWLEDGE THAT THERE WERE SOME NON - COMPLIANCE BY THE SAID AUTHORISED REPRESENTATIVE. 4. THE LD. CIT( A ) WITHOUT CONSIDERING THE MERIT OF THE GROUNDS RAISED BY THE ASSESSEE PASSED THE IMPUGNED ORDER EX PARTE . THE AUTHORIZED REPRESENTATIVE APPOINTED BY THE ASSESSEE COULD NOT APPEA R BEFORE LD. CIT(A) DURING APPELLATE PROCEEDINGS THE LD. COUNSEL CONTENDED THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. CIT( APPEALS) MAY BE GRANTED TO THE ASSESSE AS THE SUFFICIENT OPPORTUNITY OF HEARING WAS NOT GRANTED BY THE LD. CIT(A) . 5 . THE LD. DR ON THE OTHER HAND HAS NOT CONTROVERTED THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 6 . CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE NOTE THAT ASSESSEE HAS NOT PARTICIPATED IN THE APPELLATE PR OCEEDINGS DUE TO NEGLIGENCE OF LD. AR OF THE ASSESSEE . ASSESSEE SHOULD NOT BE PENALIZED JUST BECAUSE HIS AUTHORIZED REPRESENTATIVE FAILED TO APPEAR BEFORE LD. CIT( A ) . THE LD. CIT(A) PASSED HIS ORDER EX PARTE WITHOUT CONSIDERING ASSESSMENT RECORDS. W E NOTE THAT LD CIT( A ) DID NOT CONSIDER THE APPEAL OF THE ASSESSEE ON MERITS. WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT( A ). THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO TH E FILE OF L D. CIT( A ) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND F ORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. ITA NO. 1840/KOL/2018 M/S. FULFILL VINIMAY P.LTD 3 CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT( A ) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALL OWED. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 /0 6 /201 9 . SD/ - (A.T. VARKEY) SD/ - (A. L. SAINI) / JUDICIAL MEM BER / ACCOUNTANT MEMBER /KOLKATA; DATED: 12 / 0 6 /201 9 *PP , S R. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - M/S. FULFILL VINIMAY PVT. LTD 21/3 JA INDRA MOHAN AVENUE, GR. FL., KOLKATA - 7. 2. / THE RESPONDENT. - THE INCOME TAX OFFICER , WARD 1(1), AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQ., KOLKATA - 69. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .