M/s Rajshree Vinimay Pvt. Ltd., Kolkata V. ITO, Ward-2(1), Kolkata, Kolkata

ITA 189/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1187 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI ABY T. VARKEY, JUDICIAL MEMBER AND DR.A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 189 / KOL / 2017 ASSESSMENT YEAR :2012-13 M/S RAJSHREE VINIMAY PVT. LTD, 81, SOUTHERN AVENUE, KOLKAT-29 [ PAN NO.AADCR 5407 R ] V/S . INCOME TAX OFFICER, WARD-2(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI ARINDAM BHATTACHERJYEE, ADDL. CIT-DR /DATE OF HEARING 05-03-2018 /DATE OF PRONOUNCEMENT 28-03-2018 / O R D E R PER DR. A.L. SAINI, ACCOUNTANTMEMBER:- THECAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA,IN APPEAL NO.1460/CIT(A)-1/WD-2(1)/2015-16, DATED 28.10.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT),DATED 24.03.2015. 2.AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD. DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE RESPONDENT REVENUE. IN THE ABSENCE ITA NO.189/KOL/2017 A.Y. 2012-13 M/S RAJSHREE VINIMAY PVT. LTD. VS. ITO WD-2(1), KOL. PAGE 2 OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DISPOSED OF EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON MERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, 1963. 3.AT THE OUTSET, IT WAS OBSERVED FROM THE ORDER OF LD. CIT(A) THAT THE CASE WAS FIXED FOR HEARING ON VARIOUS OCCASIONS BUT THE ASSESSEE, MOST OF THE TIME REMAINED ABSENT. THEREFORE, THE APPEAL WAS DECIDED BY LD. CIT(A) EX PARTE, ON 28.10.2016. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A),ASSESSEEIS IN APPEAL BEFORE US AND SUBMITTED IN GROUNDS OF APPEAL THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE HAS RAISED GROUND NO.1, 2, 5 AND 6 WHEREIN HE HAS STATED THAT LD CIT(A) PASSED THE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY OF BEING HEARD AND DID NOT PASS THE SPEAKING ORDER. THESE GROUNDS ARE MENTIONED BELOW FOR READ REFERENCE: 1.FOR THAT THE ORDER OF LD CIT(A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2.FOR THAT THE LD CIT(A) ERRED IN PASSING THE ORDER EX-PARTE WITHOUT ALLOWING THE APPELLANT AND PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD. 5. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO WITHOUT PASSING ANY SPEAKING ORDER. 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) BE MODIFIED/SET-ASIDE AND THE ASSESSEE BE GIVEN THE RELIEF PRAYED FOR. 4.ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIONING ANY REASON FOR CONFIRMING THE SAME ON MERITS. THE PROVISIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN WRITING WITH REASON FOR DECISION. THUS, IN SUCH CIRCUMSTANCES,WE FIND THAT THE LD. CIT(A) HAS NOT PASSED THE SPEAKING ORDER. 5. WE NOTE THAT THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF ITA NO.189/KOL/2017 A.Y. 2012-13 M/S RAJSHREE VINIMAY PVT. LTD. VS. ITO WD-2(1), KOL. PAGE 3 EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA (1978) AIR 597 , WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT ITS CASE BEFORE THE ASSESSING OFFICER. 5.1 IN THE ASSESSEE`S CASE UNDER CONSIDERATION, DURING THE ASSESSMENT PROCEEDINGS, WE OBSERVE THAT FILE OF THE ASSESSEE HAS BEEN TRANSFERRED FROM ONE INCOME TAX OFFICER TO ANOTHER INCOME TAX OFFICER AND ASSESSEE`S CASE WAS FIXED FOR HEARING ONLY FOR TWO OCCASIONS, THE ASSESSING OFFICER OUGHT TO HAVE DONE THE ASSESSMENT BY PROVIDING MORE OPPORTUNITY TO THE ASSESSEE AND SINCE NO MORE OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS ON THE ADDITION/DISALLOWANCE MADE, THE PROPER COURSE TO BE TAKEN IS THAT THE MATTER NEEDS TO BE REMANDED BACK TO THE ASSESSING OFFICER.IN SUPPORT OF THIS, WE RELY ON THE DECISION OF HONBLE SUPREME COURT (THREE JUDGES BENCH) IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUBMISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. ITA NO.189/KOL/2017 A.Y. 2012-13 M/S RAJSHREE VINIMAY PVT. LTD. VS. ITO WD-2(1), KOL. PAGE 4 TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSIDERATION, AS AFORESTATED. SINCE, WE ARE OF THE OPINION THAT PROPER OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS, THEREFORE, WE ARE INCLINED TO REMAND THE ASSESSMENT BACK TO THE ASSESSING OFFICER. IN THE LIGHT OF THE AFORESAID DECISION OF THE HONBLE SUPREME COURT, CITED SUPRA, WE SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO SAY, ASSESSEE SHOULD BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO AND WE GIVE LIBERTY TO ASSESSEE TO ADDUCE EVIDENCE IN SUPPORT OF ITS CLAIM. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE DE NOVO ASSESSMENT PROCEEDINGS BEFORE THE AO THEREFORE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 5.2 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 28/03/2018 SD/- SD/- ( ) ( ) (ABY. T. VARKEY) (DR. A.L. SAINI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S - 28 / 03 /201 8 ITA NO.189/KOL/2017 A.Y. 2012-13 M/S RAJSHREE VINIMAY PVT. LTD. VS. ITO WD-2(1), KOL. PAGE 5 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S RAJSHREE VINIMAY PVT. LTD., 81, SOUTHERN AVENUE, KOLKTA-29 2. /RESPONDENT-ITDO, WARD-2(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQ. KOLKAT-69 3. / CONCERNED CIT KOLKATA 4. - / CIT (A) KOLKATA 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. BY ORDER/ , SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO ,