Dalmia Tea Plantation & Industries Ltd., , Kolkata V. ACIT, Circle - 4(1), , Kolkata

ITA 2038/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9743 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 26-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: AKKAL DUDHWEWALA ACA
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Set aside

Judgement Text

1 ITA NO. 2038/KOL/2018 DALMIA TEA PLANTATION & INDUSTRIES LTD., AY 2014-15 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 2038/KOL/2018 ASSESSMENT YEAR: 2014-15 DALMIA TEA PLANTATION & INDUSTRIES LTD. (PAN: AABCD9323R) VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE- 4(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 23.04.2019 DATE OF PRONOUNCEMENT 01.07.2019 FOR THE APPELLANT SHRI AKKAL DUDHWEWALA, ACA FOR THE RESPONDENT SHRI RADHEY SHYAM, CIT, DR ORDER PER SHRI A. T. VARKEY, JM: THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) - 19, KOLKATA DATED 16.07.2018 FOR AY 2014-15. 2. AT THE OUTSET ITSELF, THE LD. AR OF THE ASSESSEE POINTED OUT THAT THE DISMISSAL ORDER WAS PASSED BY THE LD. CIT(A) DUE TO THE FACT THAT SINCE THERE WAS A DELAY OF 78 DAYS FOR FILING OF APPEAL BEFORE HIM AND SINCE THE ASSESSEE HAS NOT FILED ANY AFFIDAVIT FOR CONDONATION OF THE DELAY, THE LD. CIT(A) HAS DISMISSED THE APPE AL OF THE ASSESSEE AS NOT MAINTAINABLE. IT WAS POINTED OUT BY THE LD. AR THAT FOR THE FIRST TI ME THE MATTER WAS FIXED BEFORE THE LD. CIT(A) ON 03.07.2018 WHICH FACT IS DISCERNIBLE FRO M THE CAUSE TITLE AS WELL AS FROM THE FIRST PARA OF THE IMPUGNED ORDER. FROM A PERUSAL OF PAGE 3 OF THE IMPUGNED ORDER, WE NOTE THAT THE LD. CIT(A) HAS TAKEN NOTE THAT THERE WAS A DELA Y OF 78 DAYS IN FILING THE APPEAL BEFORE HIM AND THAT ASSESSEE HAS NOT FILED ANY CONDONATION APPLICATION ALONG WITH AFFIDAVIT THOUGH UNDERTAKEN BY THE ASSESSEE TO FILE THE SAME. HOWEV ER, IT IS NOTED THAT FOR THE FIRST TIME THE 2 ITA NO. 2038/KOL/2018 DALMIA TEA PLANTATION & INDUSTRIES LTD., AY 2014-15 MATTER WAS FIXED ON 03.07.2018 AND NO OTHER DATE OF LISTING THE APPEAL FOR HEARING IS DISCERNIBLE FROM THE IMPUGNED ORDER WHICH MEANS THA T THOUGH THE LD. CIT(A) HAS TAKEN NOTE THAT ASSESSEE FOR CONDONING THE DELAY HAD UNDE RTAKEN TO FILE AN AFFIDAVIT HOWEVER DID NOT DO SO. SO, HE DISMISSED THE APPEAL OF THE ASSE SSEE WHEREAS WE NOTE THAT HE HAS NOT GIVEN AN OPPORTUNITY TO THE ASSESSEE TO FILE THE SAME. SO IN ALL FAIRNESS, THE LD. CIT(A) SHOULD HAVE GIVEN TIME TO ASSESSEE TO DO SO BY FIXING THE MATTER FOR ANY OTHER DAY. WITHOUT GIVING PROPER OPPORTUNITY THE LD. CIT(A) HAS DISMISSED THE APPEAL, WHICH ACTION OF THE LD. CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND, T HEREFORE, WE ARE INCLINED TO 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 ON MERITS AFRESH. FURTHER AFTER GOING TH ROUGH THE REASONS WHICH CAUSED THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A), WE COND ONE THE DELAY OF 78 DAYS TAKING NOTE THAT MRS. SIBANI KEDIA, THE SR. MANAGER OF ASSESSEE COMP ANY WAS NOT WELL WHICH PREVENTED HER FROM GIVING RELEVANT PAPERS TO THE LD. AR OF THE AS SESSEE WHICH CAUSED THE DELAY IN FILING OF APPEAL BEFORE THE LD. CIT(A). THE AFFIDAVIT FILED BY MRS. SIBANI KEDIA HAS BEEN PERUSED, THEREFORE, SINCE THERE IS REASONABLE CAUSE FOR THE DELAY OF 78 DAYS IN FILING THE APPEAL BEFORE THE LD. CIT(A), WE ARE INCLINED TO CONDONE THE DELA Y OF 78 DAYS AND REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MER ITS AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREF ORE, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2019 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1ST JULY, 2019 JD.(SR.P.S.) 3 ITA NO. 2038/KOL/2018 DALMIA TEA PLANTATION & INDUSTRIES LTD., AY 2014-15 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT M/S. DALMIA TEA PLANTATION & INDUSTRIES LTD., 130, COTTON STREET, KOLKATA- 700 007.. 2 RESPONDENT ACIT, CIRCLE-4(1), KOLKATA. 3 4 5 CIT(A)- 19 , KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR