Mos.Kabira Begum(LR of Sk.Asgar Ali), Kolkata V. D.C.I.T.,Circle-12, Kolkata

ITA 2015/KOL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1446 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 27-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Principle of natural justice; Set aside
• Section: 40A(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A - SMC KOLKATA BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 2015/KOL/2019 ASSESSMENT YEAR: 20 06 - 07 MOS. KABIRA BEGUM (L/R OF SK. ASGAR ALI) 177/A, AJC BOSE ROAD, KOLKATA - 700 014 . [ PAN NO. A CZPA7559B] / V/S . D .C.I.T, CIRCLE 12 , AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQ., 6 TH FL., KOLKATA - 69. / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT NONE APPEARED / BY RESPONDENT MR. JAYANTA KHANRA, JCIT, SR.DR / DATE OF HEARING 10 - 02 - 2021 / DATE OF PRONOUNCEMENT 10 - 02 - 2021 / O R D E R TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 13 - 06 - 2018 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 4 , KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)] . 2. NO ONE HAS PUT IN APPEARANCE DESPITE NOTICE. THEREFORE, THE IMPUGNED A PPEAL IS DECIDED AFTER GOING THROUGH THE RECORDS AND AFTER HEARING THE LD.DR . 3. I T IS NOTICED THAT THE APPEAL FILED BY THE ASSESSEE IS TIME BARRED BY 380 DAYS. A SEPARATE APPLICATION FOR CONDONATION OF SAID DELAY HAS BEEN F ILED, WHEREIN THE REASONS F OR DELAY IN FILING THIS APPEAL HAVE BEEN MENTIONED THAT SINCE THE ASSESSEE WAS DYING, WHO WAS LOOKING AFTER THE MATTER AND SINCE THE ASSESSEE WAS NOT AWARE ABOUT THE INCOME - TAX PROCEEDINGS AND , EVEN THE ASSESSEE DID NOT RECEIVE COPY OF THE ORDER OF THE ITA NO. 2015 /KOL/20 19 A.Y 20 06 - 07 MOS. KABIRA BEG UM PAGE 2 LD . CIT(A) AND THE SAME WAS LATER ON COLLECTED FROM THE O/O THE COMMISSIONER OF INCOME - TAX (APPEALS). CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSEE THE DELAY IS HEREBY CONDONED. 4. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPE AL: - 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCES/ADDITIONS FOR LONG TERM CAPITAL GAIN AMOUNTING TO RS. 5,22,294/ - 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT( A) ERRED IN CONFIRMING THE DISALLOWANCE/ADDITIONS FOR PREOPERATIVE EXP FOR RIVER VIEW HOTEL AMOUNTING TO RS.8622/ - . 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE/ADDITIONS FOR LOSS ON SALE OF ASSET S OF JASMINE BRICK FIELD AMOUNTING TO RS. 3416/ - . 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE/ADDITIONS FOR CASH PAYMENTS AT U/S. 40A(3) AT 20% AMOUNTING TO RS. 13,057/ - . 5. THAT IN THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY AND/ OR CHANGE GROUNDS OF APPEAL. 5. AT THE OUTSET, T HE LD. COUNSEL FOR THE ASSESSEE HAS BROUGHT MY ATTENTION TO THE IMPUGNED ORDER AND SUBMITTED THAT THE SAME IS AN EX PART E ORDER. A PERUSAL OF PARA 3 OF THE IMPUGNED ORDER OF THE LD. CIT(A) REVEALS THAT THE APPELLANT HAD FILED AN APPLICATION BEFORE THE LD. CITA) STATING THAT ORIGINAL ASSESSEE, S H E I KH ASGAR ALI HAD DIED , WHO WAS LOOKING AFTER THE MATTER AND THAT THE PRESENT APPELLANT COULD NOT ATTEND FOR HEARING BEFORE THE LD. CIT(A). ACCORDINGLY, HE (LD. CIT - A) DECIDED THE MATTER BY WAY OF AN EX PARTE ORDER. NOW, AT THIS STAGE THE ASSESSEE WANTS TO CONTEST THE MATTER ON MERITS. THE LD.DR RELIED ON THE ORDER OF THE LD. CIT - A. 6. AFTER HEARING THE LD. DR AND GOING THROUGH THE RECORD, I FIND THAT THE IMPUGNED ORDER OF THE LD. CIT(A) IS AN EX PARTE ORDER . IT IS PERTINENT TO MENTION THAT THE ORIGINAL ASSESSMENT WAS FRAMED IN THE NAME SHEIKH ASGAR ALI. HOWEVER, THE ASSESSE E PREFERRED APPEAL BEFORE THE LD. CIT(A) BEING LEGAL HEIR OF S HEIKH ASGAR ALI. I N MY VIEW , TAKING INTO CONSIDERATION OF PRINCIPLE OF NATURAL JUSTICE , ONE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT HER CASE BEFORE THE LD. CIT(A). T HE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. NEEDLESS TO SAY THAT LD. CIT(A) WILL PROVIDE ITA NO. 2015 /KOL/20 19 A.Y 20 06 - 07 MOS. KABIRA BEG UM PAGE 3 ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PRESENT HER CASE AND T HEREAFTER, HE WIL L DECIDE THE ISSUE(S) AFRESH BY WAY OF PASSING A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY , 10 TH FEBRUARY , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER KOLKATA, * *PP /SR.PS - 10 / 0 2 /20 2 1 / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT - M OS KABIRA BEGUM (L/R OF SK. ASGAR ALI) 177/A, AJC BOSE ROAD, KOLKATA - 700 014. 2. /RESPONDENT - THE DEPUTY COMMISSIONER OF INCOME - TAX, CIR - 12, AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQUARE, 6 TH FL. KOLKATA - 69. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, KOLKATA 6. / GUARD FILE. /TRUE COPY/ BY ORDER/ , / ,