Lalit Prasad Agarwal , Howrah V. ITO, Ward - 61(3), , Kolkata

ITA 2040/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6935 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 27-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD. ALTAF HUSSAIN
• Assessee Lawyers: DEEPAK KUMAR AGARWAL
• Keywords: Opportunity of being heard; Reasonable cause; Set aside

Judgement Text

1 ITA NO.2040/KOL/2018 LALIT PRASAD AGARWAL, AY:2015- 16 , B (SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL B(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 2040/KOL/2018 ASSESSMENT YEAR: 2015-16 LALIT PRASAD AGARWAL (PAN: ACHPA2287J) VS. INCOME-TAX OFFICER, WARD-61(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 28.01.2019 DATE OF PRONOUNCEMENT 01.03.2019 FOR THE APPELLANT SHRI DEEPAK KUMAR AGARWAL, LD. CI T(A), CS FOR THE RESPONDENT MD. ALTAF HUSSAIN, ADDL. CIT, SR . DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-19, KOLKATA DATED 30.07.2018 FOR AY 2015-16. 2. AT THE OUTSET ITSELF, IT HAS BEEN BROUGHT TO O UR NOTICE BY THE LD. COUNSEL FOR ASSESSEE THAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER. IT WAS BROUGHT TO OUR NOTICE THAT ON THE FIRST DATE OF HEARING OF THE APPEAL, THE LD. AR AP PEARED BEFORE THE LD. CIT(A) AND DURING THE SECOND HEARING SINCE THE LD. AR WAS SUFFERING F ROM FEVER COULD NOT ATTEND THE HEARING. SO, LATER WHEN HE WENT TO THE OFFICE OF LD CIT(A) T O ENQUIRE ABOUT THE NEXT DATE OF HEARING, HE WAS ASTONISHED TO KNOW THAT THE APPEAL HAS BEEN DISMISSED FOR NON-APPEARANCE OF THE AR OF THE ASSESSEE. THEREFORE, THE LD. AR PLEADS T HAT NO PROPER OPPORTUNITY WAS GRANTED BY THE LD. CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE. SO, HE PRAYED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE LD. CIT(A). ON THE OTHER HAND, THE LD. DR VEHEMENTLY OPPOSES THIS PLEA OF THE ASSESSEE AND CO NTENDED THAT THE ASSESSEE/LD. AR WAS 2 ITA NO.2040/KOL/2018 LALIT PRASAD AGARWAL, AY:2015- 16 NOT VIGILANT DURING THE APPELLATE PROCEEDING AND RE MINDED US THAT THE LAW DOES NOT HELP THE SLEEPING PERSON, THEREFORE, THE APPEAL SHOULD NOT B E REMANDED BACK TO THE LD. CIT(A). 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE FIRST APPELLATE AUTHORITY H AS DECIDED THE CASE EX PARTE WITHOUT GOING INTO THE MERITS OF THE CASE. JUSTICE SHOULD NOT ON LY BE DONE BUT SHOULD BE SEEMED TO BE DONE. IN THIS CASE SINCE LD. AR OF THE ASSESSEE AP PEARED BEFORE THE LD. CIT(A) ON THE FIRST DATE OF HEARING AND HIS ABSENCE FOR THE SECOND DATE WAS FOR REASONABLE CAUSE BEING PREVENTED BY FEVER, THE LD. CIT(A) SHOULD HAVE GIVE N AN OPPORTUNITY BEFORE DECIDING THE APPEAL EX PARTE THAT TOO WITHOUT GOING TO THE MERIT S. THIS ACTION OF LD. CIT(A) CANNOT BE COUNTENANCED AND, THEREFORE, WE SET ASIDE THE IMPUG NED ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO DECIDE THE APPEAL ON MERITS AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 ST MARCH, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 1 ST MARCH, 2019 JD. (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI LALIT PRASAD AGARWAL, 1 ST FLOOR, FLAT NO. 103A, AKASH GANGA, 22, KRISHNA KAMAL BHATTACHARJEE LANE, HOWRAH -711101. 2 RESPONDENT ITO, WARD-61(3), KOLKATA. 3. 4. CIT(A)-19, KOLKATA (SENT THROUGH E-MAIL) CIT, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR