Santosh Kajaria , Kolkata V. ITO, Ward - 63(1), , Kolkata

ITA 2006/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4806 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 19-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL ACIT
• Keywords: Opportunity of being heard; Set aside

Judgement Text

1 ITA NO.2006/KOL/2018 SANTOSH KAJARIA, AY- 2013-14 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH, SMC AT KOLKATA () . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 2006/KOL/2018 ASSESSMENT YEAR: 2013-14 SANTOSH KAJARIA (PAN: APSPK1566N) VS. ITO, WARD-63(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 21.02.2019 DATE OF PRONOUNCEMENT 17.05.2019 FOR THE APPELLANT SHRI PARAS NATH KESHARI, FCA FOR THE RESPONDENT SHRI SATYAJIT MONDAL, ACIT, SR. DR ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) 19, KOLKATA DATED 31.07.2018 FOR ASSESSMENT YEAR 2013-1 4. 2. AT THE OUTSET, THE LEARNED AR DREW OUR ATTENTION TO THE FACT THAT THOUGH THE ASSESSEE HAS RAISED FOUR GROUNDS OF APPEAL BUT THE FIRST AND FOREMOST GROUND OF APPEAL IS AGAINST THE ACTION OF LD. CIT(A) IN NOT GRANTING SUFFICIENT AND PROPER OPPORTUNITY OF BEING HEARD AND INSTEAD PASSED THE ORDER DISMISSING THE APPEAL OF T HE ASSESSEE EX PARTE. THE LEARNED AR DREW OUR ATTENTION TO AN AFFIDAVIT SWORN BY THE ASS ESSEE, FROM WHICH I DISCERN THAT THE FIRST DATE OF HEARING WAS FIXED ON 26.06.2018 BY THE LD. CIT(A) AND UPON REQUEST OF THE ASSESSEE, THE CASE WAS ADJOURNED FOR 10.07.2018. O N 10.07.2018, THE ASSESSEE SOUGHT AGAIN ADJOURNMENT FOR 17.07.2018. ON 17.07.2018 ASSESSEE S HUSBAND SHRI PAWAN KUMAR KAJARA APPEARED BEFORE THE LD. CIT(A) AND FILED DOCUMENTA RY EVIDENCE IN CONNECTION WITH ASSESSEES CLAIM OF EXEMPTION OF LONG TERM CAPITAL GAIN AND REQUESTED FOR ADJOURNMENT. BUT ON 24.07.2018 THE LD. CIT(A) PASSED THE ORDER E X PARTE DISMISSING THE APPEAL OF THE ASSESSEE, THAT TOO WITHOUT GOING INTO MERITS. ACCO RDING TO LD. AR, THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE FIRST APPELLATE AUTHO RITY TO REPRESENT HER CASE. THEREFORE, THE LD. AR PLEADS THAT THE MATTER TO BE REMANDED BACK T O THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. THE LD. CIT, DR OPPOSED THE REMANDIN G OF THE PROCEEDINGS. 2 ITA NO.2006/KOL/2018 SANTOSH KAJARIA, AY- 2013-14 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, WE NOTE THAT THE LD. CIT(A) HAS GIVEN ONLY TWO CHANCES TO THE ASSESSEE TO REPRE SENT HER CASE BEFORE HIM. BUT ACCORDING TO LD. AR THE ASSESSEE WAS UNABLE TO CHOOSE THE PRO PER LEGAL CONSULTANT TO PROTECT HER INTEREST. WE NOTE THAT THE LEARNED AR DREW OUR ATTE NTION TO AN AFFIDAVIT SWORN BY THE ASSESSEE FROM WHICH IT IS NOTED THAT THE FIRST DATE OF HEARING WAS FIXED ON 26.06.2018 BY THE LD. CIT(A) AND UPON REQUEST OF THE ASSESSEE, THE CA SE WAS ADJOURNED FOR 10.07.2018. ON 10.07.2018, THE ASSESSEE SOUGHT AGAIN ADJOURNMENT F OR 17.07.2018. ON 17.07.2018 ASSESSEES HUSBAND SHRI PAWAN KUMAR KAJARA APPEARED BEFORE THE LD. CIT(A) AND FILED DOCUMENTARY EVIDENCE IN CONNECTION WITH ASSESSEES CLAIM OF EXEMPTION OF LONG TERM CAPITAL GAIN AND REQUESTED FOR ADJOURNMENT AND THE CASE WAS ADJOURNED FOR 24.07.2018. BUT ON 24.07.2018 THE LD. CIT(A) PASSED THE ORDER E X PARTE DISMISSING THE APPEAL OF THE ASSESSEE SINCE ASSESSEE WAS ABSENT ON THAT DATE BEF ORE THE LD. CIT(A). HENCE, ACCORDING TO LD. AR, THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE LD. CIT(A) TO REPRESENT HER CASE, WHICH TANTAMOUNT TO VIOLATION OF NATURAL JUST ICE. ACCORDING TO LD. AR, GIVEN AN OPPORTUNITY THE ASSESSEE IS READY TO PARTICIPATE AN D PRODUCE ALL THE DOCUMENTS TO REPRESENT HER CASE PROPERLY BEFORE THE LD. CIT(A). 4. WE NOTE THAT ORDER IMPUGNED IS AN EX PARTE ORD ER AND THE LD. CIT(A) HAS NOT ADJUDICATED THE APPEAL ON MERITS. TAKING INTO ACCO UNT THE FACTS AS EMERGING FROM THE AFFIDAVIT, I AM OF THE OPINION THAT THE ASSESSEE DI D NOT GET PROPER OPPORTUNITY BEFORE THE LD. CIT(A) TO REPRESENT HER CASE IN PROPER MANNER. SINC E WE NOTE THAT THE ASSESSEE COULD NOT GET PROPER OPPORTUNITY BEFORE THE LD. CIT(A) IN THE INTEREST OF JUSTICE AND FAIR PLAY THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL IS REMAN DED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE TO LAW AFTER PROVI DING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE IS DIRECTED TO BE DILIGENT AND PARTICIPATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A) WITHOUT FAIL. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17TH MA Y, 2019 SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 17TH MAY, 2019 JD (SR.P.S.) 3 ITA NO.2006/KOL/2018 SANTOSH KAJARIA, AY- 2013-14 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SMT. SANTOSH KAJARIA, 114, REGENT PARK, TOLLYGUNJ, KOLKATA- 700092. 2 RESPONDENT ITO, WARD-63(1), KOLKATA. 3 . THE CIT(A)-19, KOLKATA. (SENT THROUGH E-MAIL) 4. 5. CIT , KOLKATA DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA