PRIMEROSE TRADERS PVT. LTD., Kolkata V. I.T.O. Ward -5(2), Kolkata

ITA 1951/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7245 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANISH TIWARI FCA SHRI
• Keywords: Opportunity of being heard; Set aside
• Section: 250; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT-KZ & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 1951/KOL/2019 ASSESSMENT YEAR: 2009-10 PRIMEROSE TRADERS PVT. LTD................................APPELLANT 13A, PRASANNA KUMAR TAGORE STREET GROUND FLOOR KOLKATA 700 006 [PAN: AAECP 7934 M] VS. INCOME TAX OFFICER, WARD - 5(2), HOOGHLY.....................................................RESPONDENT APPEARANCES BY: SHRI MANISH TIWARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 25 TH , 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 25 TH , 2019 O R D E R PER ABY T. VARKEY, JM :- THIS APPEAL FILED BY THE ASSESSE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 7, KOLKATA, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 10/07/2019, FOR THE ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAS PASSED AN EX-PARTE ORDER. IT WAS ALSO BROUGHT TO OUR NOTICE THAT THE ASSESSING OFFICER HAS ALSO PASSED AN EX-PARTE ORDER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SHOWCAUSE NOTICE ISSUED BY THE ASSESSING OFFICER WAS ONLY AT THE FAG END OF MARCH, 2015 AND SINCE THERE WERE NUMBER OF SHARE SUBSCRIBERS, THE ASSESSEE DID NOT GET SUFFICIENT OPPORTUNITY TO BRING ALL THE EVIDENCES AS WELL AS THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES, BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ON THE GROUND OF SUCH NON-COMPLIANCE ON PART OF THE ASSESSEE DREW ADVERSE INFERENCE AGAINST THE ASSESSEE AND MADE THE IMPUGNED ADDITION U/S 68 OF THE ACT. ON APPEAL, THE LD. CIT(A), THOUGH HAD SENT FEW NOTICES, THE ASSESSEE DID NOT RECEIVE THE SAME AND THE LAST NOTICE THE ASSESSEE RECEIVED, WAS AFTER THE DATE OF HEARING. THEREFORE, THE LD. A/R, RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX CO. VS. CIT THAT THE ASSESSEE BE GIVEN AN OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER. 2.1. THE LD. D/R OPPOSES THE PLEA OF THE ASSESSEE AND DOES NOT THE ASSESSEE ANY MORE OPPORTUNITIES. 3. HEARD RIVAL CONTENTIONS. RIVAL PARTIES ABOVE. AFTER GOING THROUGH THE RECORDS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET SUFFICIENT OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER, DURING THE A SSESSMENT STAGE. THE HONBLE SUPREME COURT IN THE CASE OF (SUPRA), UNDER SIMILAR CIRCUMSTANCES HAS LAID DOWN THE RATIO OF LAW AS UNDER: 1. 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 STRAIGHTWAY AGREE WITH THE ASSESSEES SUBMISSION THAT THE ITO HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD.' THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST 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. 2. TWO QUESTIONS WERE PLA CED 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 FINDI 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 A 3. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDERS, 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 CONSIDERATI 4. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER, FOR DE NOVO SAY THAT PROPER OPPORTUNITY SHALL BE GRANTED TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE SD/- [P.M. JAGTAP] VICE PRESIDENT DATED : 25.10.2019 {SC SPS} 2 HEARING. THEREFORE, THE LD. A/R, RELYING ON THE JUDGMENT OF THE HONBLE SUPREME TIN BOX CO. VS. CIT REPORTED IN [2001] 249 ITR 216 (SC) THAT THE ASSESSEE BE GIVEN AN OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER. THE LD. D/R OPPOSES THE PLEA OF THE ASSESSEE AND DOES NOT WANT US TO GIVE THE ASSESSEE ANY MORE OPPORTUNITIES. HEARD RIVAL CONTENTIONS. WE ARE NOT REITERATING THE AVERMENTS TAKEN BY THE RIVAL PARTIES ABOVE. AFTER GOING THROUGH THE RECORDS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET SUFFICIENT OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER, SSESSMENT STAGE. THE HONBLE SUPREME COURT IN THE CASE OF UNDER SIMILAR CIRCUMSTANCES HAS LAID DOWN THE RATIO OF LAW AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE FINDING AUTHORITY, THAT READS THUS : 'WE WILL STRAIGHTWAY AGREE WITH THE ASSESSEES SUBMISSION THAT THE ITO 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, 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. CED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE '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 FINDI NG 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 A SSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDERS, 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 CONSIDERATI ON, AS AFORESTATED. NO ORDER AS TO COSTS. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF DE NOVO ADJUDICATION, IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT PROPER OPPORTUNITY SHALL BE GRANTED TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 25 TH DAY OF OCTOBER, 2019. [ABY T. VARKEY] JUDICIAL MEMBER I.T.A. NO. 1951/KOL/2019 ASSESSMENT YEAR: 2009-10 PRIMEROSE TRADERS PVT. LTD HEARING. THEREFORE, THE LD. A/R, RELYING ON THE JUDGMENT OF THE HONBLE SUPREME [2001] 249 ITR 216 (SC) , PRAYS THAT THE ASSESSEE BE GIVEN AN OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER. WANT US TO GIVE WE ARE NOT REITERATING THE AVERMENTS TAKEN BY THE RIVAL PARTIES ABOVE. AFTER GOING THROUGH THE RECORDS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET SUFFICIENT OPPORTUNITY TO APPEAR BEFORE THE ASSESSING OFFICER, SSESSMENT STAGE. THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX CO. UNDER SIMILAR CIRCUMSTANCES HAS LAID DOWN THE RATIO OF LAW AS UNDER: - IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE 'WE WILL STRAIGHTWAY AGREE WITH THE ASSESSEES SUBMISSION THAT THE ITO HAD NOT GIVEN TO THE 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, 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 CED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT TAX OFFICER IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDERS, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF ACCORDANCE WITH LAW. NEEDLESS TO IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- [ABY T. VARKEY] JUDICIAL MEMBER C OPY OF THE ORDER FORWARDED TO: 1. PRIMEROSE TRADERS PVT. LTD 13A, PRASANNA KUMAR TAGORE STREET GROUND FLOOR KOLKATA 700 006 2. INCOME TAX OFFICER, WARD - 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY 3 OPY OF THE ORDER FORWARDED TO: PRIMEROSE TRADERS PVT. LTD 13A, PRASANNA KUMAR TAGORE STREET 5(2), HOOGHLY 5. CIT(DR), KOLKATA BENCHES, KOLKATA. BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 1951/KOL/2019 ASSESSMENT YEAR: 2009-10 PRIMEROSE TRADERS PVT. LTD BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES