M/s. Garima Investment and Trading Company Ltd., , Kolkata V. DCIT, Circle - 11(1), , Kolkata

ITA 1992/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6496 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 148; 2

Judgement Text

1 ITA NO.1992/KOL/2018 GARIMA INVESTMENT & TRADING CO . LTD., AY:2009-10 , A (SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL A(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1992/KOL/2018 ASSESSMENT YEAR: 2009-10 M/S. GARIMA INVESTMENT & TRADING COMPANY LTD., (PAN: AAACG9916G) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-11(1), KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 15.01.2019 DATE OF PRONOUNCEMENT 15.01.2019 FOR THE APPLICANT SHRI MANOJ KATARUKA, A.R. FOR THE RESPONDENT MD. GHAYAS UDDIN, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-4, KOLKATA DATED 23.05.2018 FOR AY 2009-10. 2. WE NOTE THAT THE APPEAL OF ASSESSEE IS TIME BA RRED BY 49 DAYS AND ASSESSEE HAS FILED A CONDONATION PETITION WHEREIN IT HAS EXPLAINED THE DELAY THAT THE EX PARTE ORDER OF THE LD. CIT(A) WAS COMMUNICATED THROUGH E-MAIL ON 31.05.201 8 IN THE E-MAIL ACCOUNT OF LATE MOOLCHAND SHARMA, WHO WAS THE COMPANY ACCOUNTANT AN D THAT HE EXPIRED ON 01.02.2017. ASSESSEE ALSO STATED THAT THE ASSESSEE SELDOM USED THE SAME E-MAIL AND, THEREFORE, WHEN THE ID WAS CHECKED ON 31.08.2018 THE ORDER WAS FOUND AN D COMMUNICATED IMMEDIATELY TO THE ADVOCATE DEALING WITH THE MATTER. HENCE, HE URGED B EFORE THE BENCH TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE LD. DR HAS ALSO NO OBJECTION TO CONDONE THE DELAY. HENCE, WE CONDONE THE DELAY AND ADMIT THE A PPEAL FOR ADJUDICATION. 3. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L IS AGAINST THE ACTION OF LD. CIT(A) IN UPHOLDING BY AN EX PARTE ORDER THE ADDITION OF R S.3,16,688/- ON ACCOUNT OF BOGUS LOSS MADE BY THE AO AND ALSO CONFIRMING THE ACTION OF AO TO ISSUE NOTICE U/S. 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT IN FRAMING ORDER PASSED U/S. 2 ITA NO.1992/KOL/2018 GARIMA INVESTMENT & TRADING CO . LTD., AY:2009-10 147/143 OF THE ACT, WHICH, ACCORDING TO LD. AR, WAS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE IN HAVING PASSED THE EX PARTE ORDER QUA THE ASSESSEE WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND WITHOUT ENSURING THE LAST NOTICE FIXING HEARING ON 22.05.2018 WAS NEVER SERVED UPON THE ASSESSEE FOR WHICH THE ASSESSEE HAS FILED AN AFFIDAVIT. HENCE, HE URGED BEFORE THE BENCH TO SET ASIDE THE EX PARTE ORDER OF LD. CIT(A) AND REMAND THE MATTER BACK TO HIS FILE F OR FRESH ADJUDICATION. LD. DR HAS OPPOSED THIS PRAYER OF THE ASSESSEE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT SINCE THERE IS REASONABLE CAUSE FOR ASSESSEE NOT APPEARING BEFORE THE LD. CIT(A) AS STATED ABOVE AND THE LD. CIT(A) PASSED TH E ORDER EX PARTE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE APPEAL AFRESH AFTER AFFORDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 JANUARY , 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 15 JANUARY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. GARIMA INVESTMENT & TRADING COM PANY LTD., 2 ND FLOOR, BANGUR BUILDING, 14, NETAJI SUBHASH ROAD, KOLKATA-7 00 001. 2 RESPONDENT DCIT, CIRCLE-11(1), KOLKATA. 3. 4. CIT(A)-4, KOLKATA(SENT THROUGH E-MAIL) CIT, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR