Shri Kush Mishra, Kolkata V. DCIT, Circle-45, Kolkata, Kolkata

ITA 1885/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9393 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 1990-1991
• Appeal Filed On: 27-09-2016
• Court: TRIBUNAL
• Assessee Lawyers: ANIL KOCHAR LD
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,D BENCH,KOLK ATA BEFORE : SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT M EMBER ITA NOS. 1885 & 1657/KOL/2016 A.YS 1990-91 & 1991-92 SHRI KUSH MISHRA VS. DEPUTY COMMISSIONER OF PAN: AEYPM 8981J INCOME-TAX, CIR-45, KOLKATA [APPELLANT] [RESPONDENT] APPELLANT BY : SHRI ANIL KOCHAR, ADVOCATE , LD.AR RESPONDENT BY : NONE APPEARED/ADJ.PET ITION REJECTED DATE OF HEARING : 07-02-2017 DATE OF PRONOUNCEMENT : 07-02-2017 ORDER PER BENCH: THESE APPEALS PREFERRED BY THE ASSESSEE EMANATE FRO M THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS) [IN SHORT (LD. CIT(A)], 13, KOLKATA DATED 06-07-201 6 AND 28-06- 2016 ON THE FOLLOWING RESPECTIVE GROUNDS:- GROUNDS OF APPEAL PREFERRED FOR THE A.Y 1990-91 (BY THE ASSESSEE 1. FOR THAT THE LD. CIT (A) ERRED IN DISMISSING TH E APPEAL OF THE APPELLANT BY MAKING VARIOUS OBSERVATIONS WHICH ARE ENTIRELY INCORRECT AND AGAIN ST FACTS. 2. FOR THAT THE LD. CIT (A) OUGHT TO HAVE PROPERLY CONSIDERED AND APPRECIATED WRITTEN SUBMISSIONS MADE BY THE APPELLANT IN THE COURSE OF HEARING OF THE APPEAL AND OUGHT TO HAVE ALSO TAKEN NOTE OF AND CONSIDERED THE FACTS ON RECORD PROPERLY. 3. FOR THAT OBSERVATIONS MADE BY THE LD. CIT (A) A BOUT NON APPEARANCE OF THE APPELLANT AS NOTED BY HIM ON VARIOUS DATES IS NOT CORRECT AS FROM TIME TO TIME EITHER APPEARANCES HAVE BEEN MADE OR WRITTEN SUBMISSIONS HAVE BEEN FILED AND, ACCORDINGLY, THE MATTER OUGHT TO HAVE BEEN PROPERLY DECIDED ON MERITS. ITA NOS. 1657 & 1885/KOL/2016 SHRI KUSH MISHRA 2 4. FOR THAT THE LD. CIT (A) FAILED TO DECIDE THE G ROUNDS TAKEN BEFORE HIM PROPERLY AND HAS CONFIRMED THE ORDER OF ASSESSMENT WITHOUT ASSIGNING ANY REASONS AND THE BASIS THEREOF. 5. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 25,000/ ON THE ALLEGED GROUNDS WHI CH PERTAINED TO EXCHANGE OF OLD NOTES. 6. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 4,06,466/ ADDED BY THE A.O. AS UNDISCLOSED INCOME OF THE APPELLANT. 7. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY B E ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. GROUNDS OF APPEAL PREFERRED FOR THE A.Y 1991-92 ( B Y THE ASSESSEE) 1. FOR THAT THE LD. CIT (A) ERRED IN DISMISSING TH E APPEAL OF THE APPELLANT BY MAKING VARIOUS OBSERVATIONS WHICH ARE ENTIRELY INCORRECT AND AGAIN ST FACTS. 2. FOR THAT THE LD. CIT (A) OUGHT TO HAVE PROPERLY CONSIDERED AND APPRECIATED WRITTEN SUBMISSIONS MADE BY THE APPELLANT IN THE COURSE OF HEARING OF THE APPEAL BEFORE DIFFERENT CIT (A) AND OUGHT TO HAVE ALSO TAKEN NOTE OF AND CONSIDERED THE FACTS ON RECORD. 3. FOR THAT OBSERVATIONS MADE BY THE LD. CIT (A) A BOUT NON APPEARANCE OF THE APPELLANT AS NOTED BY HIM ON VARIOUS DATES IS NOT CORRECT AS FROM TIME TO TIME EITHER APPEARANCES HAVE BEEN MADE OR WRITTEN SUBMISSIONS HAVE BEEN FILED AND, ACCORDINGLY, THE MATTER OUGHT TO HAVE BEEN PROPERLY DECIDED ON MERITS. 4. FOR THAT THE LD. CIT (A) FAILED TO DECIDE THE G ROUNDS TAKEN BEFORE HIM AND HAS CONFIRMED THE ORDER OF ASSESSMENT WITHOUT ASSIGNING ANY REASONS AND THE BASIS. 5. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY B E ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. ITA NOS. 1657 & 1885/KOL/2016 SHRI KUSH MISHRA 3 2. AT THE TIME OF HEARING BEFORE US THE LD.DR FOR T HE REVENUE WAS ABSENT ON MEDICAL GROUNDS, PETITION FOR ADJOURN MENT BEING FILED AT THE TIME OF HEARING BEFORE US. THIS IS REJ ECTED BY THE BENCH. 3. THAT AT THE VERY OUTSET ON PERUSAL OF RECORDS FO R BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION, WE FIND THAT AT THE TIME OF HEARING BEFORE THE 1 ST APPELLATE AUTHORITY NO ONE APPEARED ON BEHALF OF THE ASSESSEE. THAT FOR BOTH THE ASSESSMEN T YEARS UNDER CONSIDERATION THERE WAS NO ADJUDICATION AT THE FIRS T APPELLATE STAGE BY THE LD. CIT(A). THE RIGHTS AND LIABILITIE S OF THE ASSESSEE THROUGH PROPER HEARING IS YET TO BE DECIDED BY THE 1 ST APPELLATE AUTHORITY. THE PRINCIPLE OF NATURAL JUSTICE DEMANDS THAT THE MATTER INVOLVED IN BOTH THE APPEALS FILED BY THE AS SESSEE BE SET ASIDE BACK TO THE FILE OF THE LD. CIT(A). THE RIGHT S AND LIABILITIES WERE NOT DETERMINED BY THE CIT(A) SINCE ORDER PASSE D EXPARTE. UNDER THESE CIRCUMSTANCES, WE ARRIVE AT OUR CONSIDE RED VIEW FOR PROPER DETERMINATION OF RIGHTS AND LIABILITIES THIS CASE SHOULD BE SET ASIDE BACK TO THE FILE OF THE LD. CIT(A) FOR HI S FRESH ADJUDICATION AFTER HEARING THE PARTIES. WE ORDER AC CORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE FOR BOTH THE ASSESSM ENT YEARS ARE ALLOWED FOR STATISTICAL PURPOSE. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 07-02-2017 SD/- SD/- DR. ARJUN LAL SAINI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 07-02-2017 ITA NOS. 1657 & 1885/KOL/2016 SHRI KUSH MISHRA 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: SHRI KUSH MISHRA C/O S.L KOCHAR , ADVOCATE, 86 CANNING STREET, KOLKATA-700 001. 2 RESPONDENT/DEPARTMENT : THE DCIT, CIR-45, 3 GOVT P LACE, KOLKATA-700 001. 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS [ TRUE COPY ] BY ORDER, ASSTT REGISTRAR