Mr. Pawan Kumar Murarka, Kolkata V. ITO, Ward - 45(4), Kolkata, Kolkata

ITA 2042/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1802 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 14-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOKE NAG CITSR
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, AM] I.T.A. NO. 2042/KOL/2017 ASSESSMENT YEAR : 2013-14 MR. PWAN KUMAR MURARKA.............................APPELLANT MUKESH GUPTA & CO., BENTINCT STREET, OLD WING, 2 ND FLOOR, KOLKATA 700 001 [PAN : AERPM 1060 P] INCOME TAX OFFICER...........................................RESPONDENT WARD 45(4) KOLKATA, 3, GOVT. PLACE WEST, KOLKATA 700 001 APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI ALOKE NAG, ADDL. CIT(SR.DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 09, 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 12, 2018 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) -13, KOLKATA DATED 11.11.2016 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF TRADING IN CLOTH UNDER THE NAME AND STYLE OF HIS PROPRIETARY CONCERN M/S. F.M. ENTERPRISES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 30.09.2013 DECLARING A TOTAL INCOME OF RS. 4,01,660/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 29.02.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE A.O. AT RS. 41,50,120/- AFTER MAKING ADDITIONS OF RS. 35,53,245/- AND RS. 1,95,215/- ON 2 I.T.A. NO. 2042/KOL/2017 A.Y. 2013-14 PAWAN KUMAR MURARKA ACCOUNT OF ALLEGED BOGUS CREDITORS AND DISALLOWANCE OF CARRIAGE INWARD EXPENSES RESPECTIVELY. 3. AGAINST THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL VIDE HIS APPELLATE ORDER DATED 11.11.2016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE ON THE GROUND OF LACK OF PROPER AND SUFFICIENT OPPORTUNITY, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ALTHOUGH THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) ON FIVE DIFFERENT DATES, ALL THESE DATES WERE LYING IN A VERY SHORT PERIOD OF TIME OF LESS THAN 3 MONTHS. HE SUBMITTED THAT ALTHOUGH THE ASSESSEE SOUGHT ADJOURNMENTS OF 3 RD AND 4 TH HEARINGS FIXED ON 27.09.2016 AND 04.10.2016, HE COULD NOT APPEAR ON THE 5 TH HEARING FIXED ON 01.11.2016 DUE TO CERTAIN SERIOUS DIFFERENCES AND MISUNDERSTANDING WITH HIS AUTHORISED REPRESENTATIVES. HE HAS CONTENDED THAT THE LD. CIT(A) HOWEVER DID NOT GIVE ANY MORE OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX- PARTE. HE HAS CONTENDED THAT THE APPEAL OF THE ASSESSEE THUS WAS 3 I.T.A. NO. 2042/KOL/2017 A.Y. 2013-14 PAWAN KUMAR MURARKA DISMISSED BY THE LD. CIT(A) WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND URGED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE LD. CIT(A). AFTER HAVING CONSIDERED ALL THE FACTS OF THE CASE, I FIND MERIT IN THIS CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) PASSED EX- PARTE AND REMIT THE CASE BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL POSSIBLE COOPERATION TO THE LD. CIT(A) IN ORDER TO ENABLE HIM TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER DATED: 12/01/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. MR. PAWAN KUMAR MURARKA, MUKESH GUPTA & CO., 7A, BENTINCK STREET, OLD WING, 2 ND FLOOR, KOLKATA 700 001. 2. ITO, WARD 45(4), 3, GOVT. PLACE WEST, KOLKATA 700 001. 4 I.T.A. NO. 2042/KOL/2017 A.Y. 2013-14 PAWAN KUMAR MURARKA 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA