M/s Rahul Premier India Agency Pvt. Ltd., Kolkata V. ITO, Ward-4(4), Kolkata, Kolkata

ITA 2002/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9538 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-10-2016
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Assessee Lawyers: S M SURANA
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• 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.SAI NI, AM ./ ITA NO.2002/KOL/2016 ( / ASSESSMENT YEAR:2011-2012) M/S RAHUL PREMIER INDIA AGENCY PRIVATE LIMITED, 234/3A, AJC BOSE ROAD, 5 TH FLOOR, SUITE NO.A-4, KOLKATA -700017 VS. ITO, WARD-4(4), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 ./ ./PAN/GIR NO.: AABCR 2687 I ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI S.M.SURANA, ADVOCATE REVENUE BY : MD. GHYAS UDDIN, JCIT / DATE OF HEARING : 04/01/2016 /DATE OF PRONOUNCEMENT 13/01/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO THE ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST THE OR DER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA, IN APPEAL NO.1320/CIT(A)-2/14-15, DATED 26.07.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SE CTION 143(3) OF THE INCOME TAX ACT 1961, (IN SHORT THE ACT), DATED 03 .03.2014. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.09.2012 DECLARING TOTAL INCOME OF RS.23,95,270/-. ASESSEES CASE WAS SELECTED FOR SCR UTINY U/S.143(3) OF THE ACT AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKI NG THE VARIOUS ADDITIONS. 3. AGGRIEVED FROM THE ORDER OF THE AO, ASSESSEE FIL ED AN APPEAL BEFORE THE CIT(A), WHO DISMISSED THE APPEAL FILED B Y THE ASSESSEE ON ITA NO.2002/16 M/S RAHUL PREMIER INDIA AGENCY PVT. LTD. 2 ACCOUNT OF FACT THAT ASSESSEE DID NOT FILE ANY STAT EMENT OF FACTS NOR ANY GROUNDS OF APPEAL AS REQUIRED IN THE PRESCRIBED FOR MAT. THE OBSERVATIONS OF THE CIT(A) ARE AS UNDER :- THE ASSESSEE BEING AGGRIEVED BY THE ABOVE ORDER FIL ED AN APPEAL ON 25.04.2014. THE CASE WAS FIXED FOR HEARIN G ON 22.07.2016 AND THE AR OF THE ASSESSEE APPEARED FOR HEARING. DURING THE PROCEEDINGS, IT WAS BROUGHT TO THE NOTIC E OF THE AR THAT THIS APPEAL DOES NOT HAVE STATEMENT OF FACTS OR GRO UND OF APPEAL. THE ASSESSEE AT THE TIME OF FILING THE APPEAL FILED A PAGE HAVING HEADING STATEMENT OF FACTS AND GROUND OF APPEAL BUT IT IS SORT OF STATEMENT OF FACTS AND THERE IS NOT PROPER GROUND O F APPEAL IN THE FILE. THE GROUNDS OF APPEAL APPENDED THERETO WHICH IS RE QUIRED TO BE SUBMITTED TO THE CIT(A) ALONG WITH FORM NO.35, A S LAID DOWN IN SECTION 249 AND RULES 45 AND 46. THE AR OF THE APPE LLANT APPEARED BEFORE THE UNDERSIGNED ON 22.07.2016. DURI NG THE HEARING IT WAS POINTED OUT TO THE AR AND AS PER ORD ER SHEET ENTRY DATED 22.07.2016, THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE AR. THERE IS NO PROVISION TO THE CIT(A) TO CALL UPON T HE APPELLATE TO RECTIFY THE MISTAKE. IN VIEW OF THE ABOVE, THE O RDER OF THE AO IS UPHELD AND THE APPEAL IS DISMISSED. IN THE RESULT, THE APPEAL OF THE APPELLANT DISMISS ED. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITR ARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CI.T(A) ERRED IN DISMISSING TH E APPEAL ON THE GROUND THAT THE APPEAL DOES NOT HAVE STATEMENT OF F ACTS OR GROUNDS OF APPEAL WHEN SUCH STATEMENT OF FACTS AND GROUNDS OF APPEAL WERE PART OF THE MEMO OF APPEAL FILED BEFORE THE LD. CI.T(A). 3. FOR THAT EVEN OTHERWISE THE LD. CI.T(A) ERRED I N DISMISSING THE APPEAL WITHOUT ALLOWING THE ASSESSEE ANY PROPER OPP ORTUNITY TO FILE REVISED STATEMENT AND GROUNDS. 4. FOR THAT THE LD. CIT(A) SHOULD HAVE ALLOWED THE ASSESSEE'S APPEAL ON NON ALLOWANCE OF DEPRECIATION ON CAR, VEH ICLE MAINTENANCE EXPENSES AND SUBSCRIPTION AND DONATION WHICH WERE OTHERWISE COVERED BY VARIOUS DECISION IN FAVOU R OF THE ASSESSEE. 5. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN TH E RELIEF PRAYED FOR. ITA NO.2002/16 M/S RAHUL PREMIER INDIA AGENCY PVT. LTD. 3 5. THE LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN FACT , THE GROUNDS OF APPEALS WERE FILED BY THE ASSESSEE WHICH ARE APPEAR ING ON THE FACE OF THE ORDER OF THE LD CIT(A) AND THIS WAY, THE LD CIT (A) CONTRADICTED HIMSELF. THEREFORE, LD. AR REQUESTED BEFORE US TO REMIT THE CASE BACK TO THE FILE OF CIT(A) TO RE-ADJUDICATE THE ISSUE AFRESH. 6. EVEN THE, LD. DR FOR THE REVENUE HAS AGREED TO R EMIT THE CASE BACK TO THE FILE OF THE LD CIT(A) TO ADJUDICATE THE ISSU E AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF ASSESSEE, AS THE PROPOSITION CANVASSED BY LD. AR FOR THE ASSESSE E ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. WE FOUND THAT LD. CIT(A) HAD CONTRADICTED WITH HIMSELF, THE GROUNDS OF APPEALS R AISED BY THE ASSESSEE ARE MENTIONED BY HIM IN HIS ORDER AND HE DID NOT AD JUDICATE THEM. WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE, WHICH IS AGAI NST THE PRINCIPLE OF NATURAL JUSTICE. IF THE GROUNDS OF APPEALS FILED BY THE ASSESSEE WERE NOT IN THE PRESCRIBED FORM, THE LD.CIT(A) SHOULD HAVE ASK ED THE ASSESSEE TO FILE IT AGAIN BEFORE HIM. JUSTICE SHOULD NOT BE DEN IED BECAUSE OF A MINOR MISTAKE IN GROUNDS OF APPEAL/FILING OF APPEAL. THE REFORE, CONSIDERING THE FACTUAL POSITION, WE ARE OF THE VIEW TO REMIT THE CASE BACK ITA NO.2002/16 M/S RAHUL PREMIER INDIA AGENCY PVT. LTD. 4 TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-AD JUDICATE THE ISSUE AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13/0 1/2017. SD/ - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 13/01/2017 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-M/S RAHUL PREMIER INDIA PVT.LTD. 2. / THE RESPONDENT.-ITO WARD-4(4), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//