Shirish Gunvantrai Desai(HUF), Mumbai V. DCIT, Cir.-36, Kolkata, Kolkata

ITA 191/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6545 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRIA BHATTACHARJEE
• Assessee Lawyers: V N DATTA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NOS.191/KOL/2017 ( [ [ / ASSESSMENT YEAR: 2009-10) SHIRISH GUNVANTRAI DESAI (HUF) FLAT NO.401, 4 TH FLOOR, RAHEJA RESIDENSY CHSL, PLOT NO.106, ROAD NO.29 SION EAST, MUMBAI 400 022. VS. ITO, WD-15(3), KOLKATA AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, KOLKATA 700017. ./ ./PAN/GIR NO. : AABHD 6112 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI V. N. DATTA RESPONDENT BY :SHRIA. BHATTACHARJEE, ADDL. CIT(DR) / DATE OF HEARING : 19/04/2018 /DATE OF PRONOUNCEMENT : 26/04/2018 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA IN APPEAL NO.72/CIT(A)-10/C-36/16-17/KOL, DATED 23.11.2016, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 28.03.2016. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER SHIRISH GUNVANTRAI DESAI (HUF) ITA NOS.191/KOL/2017 ASSESSMENT YEAR: 2009-10 PAGE | 2 AND THEREFORE, THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE THE LD. CIT(A). THE COUNSEL POINTED OUT THAT THE LD CIT(A),DURING THE APPELLATE PROCEEDINGS, HAS NOT GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN HIS GROUNDS OF APPEAL, HAS ESPECIALLY RAISED GROUND NO.3 STATING AS FOLLOWS: THAT THE LD. CIT(A) OUGHT TO HAVE ALLOWED ANOTHER OPPORTUNITY OF BEING HEARD AS HE TOO ISSUED ONLY ONE NOTICE AND DUE TO THE REASON OF THE APPELLANT KARTA BEING BED RIDDEN DUE TO ILLNESS SINCE ALMOST APRIL 2016 AND THUS WAS HIGHLY INCAPACITATED IN ATTENDING TO HIS OFFICIAL AFFAIRS, THE SAID NOTICE WENT UNATTENDED. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE KARTA OF THE HUF, HAS BEEN FEELING SEVERE ILLNESS SINCE A LONG, THEREFORE HE COULD NOT ATTEND THE HEARING BEFORE THE LD. CIT(A), HENCE HE PRAYED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. THE LD. DR FOR THE REVENUE DID NOT HAVE ANY OBJECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF LD. CIT(A),HOWEVER, HE WANTED THE ASSESSEE TO PARTICIPATE IN APPELLATE PROCEEDINGS. 4. WE NOTE THAT ASSESSMENT WAS CARRIED OUT U/S 147/143(3) OF THE ACT AND THE IMPUGNED ORDER IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. SINCE, THE IMPUGNED ORDER IS AN EX PARTE ORDER, THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE THE LD. CIT(A), THEREFORE CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, WE ARE INCLINED TO SET ASIDE THE IMPUGNED WITH A DIRECTION TO THE ASSESSEE TO BE PRESENT BEFORE THE LD. CIT(A) ON 3 RD JULY, 2018. THE LD. CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER AFTER HEARING THE ASSESSEE AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. NO SEPARATE NOTICE WILL BE GIVEN TO THE ASSESSEE FOR APPEARANCE BEFORE THE LD. CIT(A) ON 3 RD JULY, 2018. THIS IS TO ENSURE THAT THE ASSESSEE SHOULD PARTICIPATE IN THE SHIRISH GUNVANTRAI DESAI (HUF) ITA NOS.191/KOL/2017 ASSESSMENT YEAR: 2009-10 PAGE | 3 APPELLATE PROCEEDINGS DILIGENTLY. THEREFORE, WE ALLOW THIS APPEAL FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26/04/2018. SD/ - (A. T. VARKEY) SD/ - (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 26/04/2018 ( RS, SPS) / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. /THE APPELLANT- SHIRISH GUNVANTRAI DESAI (HUF) 2. / THE RESPONDENT- ITO, WD-15(3), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE.