Bally Exports Pvt. Ltd., , Kolkata V. DCIT, Circle - 6(1), Kolkata

ITA 1945/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0155 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 10-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Assessee Lawyers: B K PODDAR
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM &DR. A.L.SAINI , AM ./ITA NO.1945/KOL/2018 ( / ASSESSMENT YEAR: 2013-14) BALLY EXPORTS PVT. LTD. P-26B, KASBA INDUSTRIAL ESTATE, PHASE- III, KOLKATA-700107. VS. DCIT, CIRCLE-6(1), KOLKATA ./ ./PAN/GIR NO.: AABCB 2053 L (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI B. K. PODDAR, FCA RESPONDENT BY : SHRI SHANKAR HALDER, JCIT SR. DR / DATE OF HEARING : 27/03/2019 /DATE OF PRONOUNCEMENT : 29/03/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PE RTAINING TO ASSESSMENT YEAR 2013-14, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-2 , KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) DATED 24.03.2016. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL SUBMITTED BEFORE US, THAT DURING THE APPELLATE PROCEEDINGS, FOLLOWING NOTICES WERE ISSUED FOR HEAR ING IN THE MATTER. THE DETAILS OF THESE NOTICES ALONG WITH REMARKS ARE AS UNDER: BALLY EXPORTS PVT. LTD. ITA NO.1945/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 2 22 2 DATE OF NOTICE DATE OF HEARING REMARKS 26.04.2018 23.05.2018 THE CASE WAS FIXED FOR HEARING TODAY BUT NONE APPEARED NOR WAS AN ADJOURNMENT PETITION FILED ON BEHALF OF THE ASSESSEE. 23.05.2018 08.06.2018 THE AR OF THE APPELLANT FILED A LETTER DATED 07.06.2018 FOR ADJOURNMENT AND CASE WAS ADJOURNED FOR 12.07.2018 BEING LAST ADJOURNMENT. 12.07.2018 THE CASE WAS FIXED FOR HEARING TODAY BUT NONE APPEARED NOR WAS AND ADJOURNMENT PETITION FILED ON BEHALF OF THE ASSESSEE. THIS APPEAL IS FIXED FOR HEARING ON 12.07.2018 INS TEAD OF 17.07.2019. THE ASSESSEE REQUESTED THE LD. CIT(A) TO ADJOURN THE CA SE ON 17.07.2019 BUT LD. CIT(A) CONDUCTED THE HEARING ON 12.07.2019 THEREFORE AT TH E TIME OF HEARING THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. CIT(A). HENCE HE CO ULD NOT PLEAD HIS CASE PROPERLY. HENCE THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNIT Y TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED AN AFFIDAVIT TO PROVE THE BONA FIDE OF HIS CLAIM THAT SUFFICIENT OP PORTUNITY OF BEING HEARD HAD NOT GIVEN TO HIM. THE RELEVANT PORTION IS GIVEN BELOW F OR READY REFERENCE: BALLY EXPORTS PVT. LTD. ITA NO.1945/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 3 33 3 1. THAT ON 17.07.2018, THE DATE FIXED FOR HEARING OF APPEAL NO. 2/101042/2016- 17 FOR A.Y. 2013-14, I VISITED THE OFFICE OF COMMIS SIONER OF INCOME TAX(A)-2 TO FILE THE ENCLOSED LETTER REQUIRING FOR ADJOURNMENT BUT T HE PERSON CONCERN ASKED ME TO COME ON 18.07.2018 AND DID NOT ACCEPT THE LETTER. 2. THAT AGAIN 18.07.2018 I APPEARED BEFORE THE SAID PERSON ALONG WITH THE ENCLOSED LETTER, BUT HE DID NOT ACCEPT THE LETTER A GAIN AND INFORM ME THAT THE ORDER HAS BEEN ALREADY PASSED ON 16.07.2018. 3. THAT THE ABOVE STATEMENTS ARE TRUE TO MY KNOWLED GE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE LD. CIT(A) DID NOT COMMUNICATE THE DATE OF ADJOURNMENT. WE ALSO NOTE THAT THE LD. CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND DID NOT PASS ORDER ON MERITS BASED ON THE DOCUMENTS AVAIL ABLE BEFORE HIM HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE NOTE THAT THE LD. CIT(A) FAILED TO DETERMINE THE OBLIGATIONS AND RIGHTS OF THE ASSESSE E. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY RE QUIRE THAT THE EFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CO NTEST HIS CASE. HENCE WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO ASSESSEE TO PLEAD HIS CASE BEFORE LD. CIT(A). THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MA TTER BACK TO THE FILE OF LD. 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 FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FIL E OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSE S, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 2 9.03.2019 SD/- ( S.S.VISWANETHRA RAVI ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER BALLY EXPORTS PVT. LTD. ITA NO.1945/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 4 44 4 /KOLKATA; / DATE: 29/03/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. BALLY EXPORTS PVT. LTD. 2. DCIT, CIRCLE-6(1), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES