M/s. Bihariji Commercials Ltd., Kolkata V. I.T.O. Ward 5(3), Kolkata, Kolkata

ITA 2055/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9573 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 26-10-2016
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND AGARWAL LD
• Keywords: Non compliance
• Section: 142(1); 14A; 148

Judgement Text

ITA NO. 2055/KOL/2016 M/S. BIHARIJI COMMERCIALS LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI DR. A.L. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 2055/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. BIHARIJI COMMERCIALS LTD. PAN: AACCB2456N, C/O G.P AGARWAL & ASSOCIATES, 7A, KIRON SHANKAR RAY ROAD, 2 ND FLOOR, KOLKATA-700 001. APPELLANT -VS.- I.T.O WARD 5(3), KOLKATA RESPONDENT APPEARANCES BY: SHRI ARVIND AGARWAL, ADVOCATE, LD.AR FOR THE ASSESS EE NONE APPEARED FOR THE REVENUE DATE OF HEARING : 13-01- 2017 DATE OF PRONOUNCEMENT : 2 0 -01-2017 ORDER SHRI. S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT : 03-08-2016 PASSED BY THE COMMISSIONER OF INCOME TAX-(APPEALS), 2, KOL KATA FOR THE ASSESSMENT YEAR 2011-12. ITA NO. 2055/KOL/2016 M/S. BIHARIJI COMMERCIALS LTD 2 2. INSPITE OF SERVICE OF NOTICE BY THE TRIBUNAL, NO ONE APPEARED FOR THE REVENUE TO PROSECUTE THE APPEAL. HOWEVER, VIDE AN A PPLICATION DATED 12-01- 2017 THE REVENUE SOUGHT ADJOURNMENT ON THE GROUND T HAT THE LD.SR.DR HAS BEEN APPOINTED AS EXPENDITURE OBSERVER IN THE GENER AL ELECTIONS TO LEGISLATIVE ASSEMBLIES OF GOA, MANIPUR, PUNJAB, UTTAR PRADESH AND UTTARAKHAND 2017 BY THE ELECTION COMMISSION OF INDIA AND HE IS ATTENDIN G THE BRIEFING/TRAINING AT DELHI. THEREFORE, THE CONCERNED LD.SR.DR IS UNABLE TO ATTEND/APPEAR BEFORE THE ITAT, KOLKATA ON THE DATE OF HEARING ON 13-01-2017. 3. THE LD.AR APPEARING ON BEHALF OF ASSESSEE HAS OB JECTED TO THE ABOVE PROPOSITION OF THE REVENUE SEEKING FOR ADJOURNMENT AND URGED BEFORE THE BENCH TO PROCEED THE HEARING AS THE FIRST APPELLATE AUTHORITY DID NOT AFFORD ANY OPPORTUNITY TO ASSESSEE TO PROSECUTE ITS CASE BY PA SSING AN EX PARTE ORDER AND PRAYED BEFORE US TO REMAND THE ISSUES TO THE FILE O F THE CIT-A FOR FURTHER CONSIDERATION/ADJUDICATION. IN VIEW OF THE ABOVE, T HE SAID ADJOURNMENT APPLICATION DATED 12-01-2017 FILED BY THE REVENUE I S REJECTED AND WE PROCEEDED TO DISPOSE OF THE APPEAL AFTER HEARING TH E LD.AR AND PERUSING THE MATERIAL AVAILABLE ON RECORD ON MERITS. 4. IN THIS APPEAL THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS OF APPEAL, AMONGST WHICH THE ONLY EFFECTIVE GROUND IN THIS APP EAL IS TO BE DECIDED WHETHER THE CIT-A JUSTIFIED IN PASSING AN EX PARTE ORDER WITHOUT GRANTING ADEQUATE OPPORTUNITY OF HEARING TO ASSESSEE. 5. THE ASSESSEE BEING A COMPANY FILED ITS ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME AT RS. NIL ON 08-08-2011. UN DER SCRUTINY OF SAID RETURN NOTICE U/S. 143(1) OF THE ACT WAS ISSUED. THEREAFTE R, FOR RE-OPENING THE ASSESSMENT NOTICE U/S. 148 OF THE ACT WAS ISSUED AN D FOLLOWED BY A NOTICE U/S. 142(1) OF THE ACT. THEREBY, THE INCOME OF ASSESSEE WAS ASSESSED AT ITA NO. 2055/KOL/2016 M/S. BIHARIJI COMMERCIALS LTD 3 RS.25,04,500/- BY AN ORDER DATED 09-03-2015 PASSED U/S. 143(3)/147 OF THE ACT BY MAKING DISALLOWANCE OF RS.23,08,743/- UNDER RULE 8D(2)(II) R.W.S 14A OF THE ACT. 6. IN FIRST APPEAL, BEFORE THE CIT-A DISMISSED THE APPEAL OF ASSESSEE FOR NON COMPLIANCE OF NOTICE ISSUED FOR HEARING. 7. BEFORE US THE LD.AR SUBMITS THAT THE CIT-A DID N OT GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO PROSECUTE ITS CASE. THE LD. AR SUBMITS THAT ON TWO OCCASIONS NO ONE APPEARED BEFOR E THE CIT-A, BUT, HOWEVER, ON OTHER TWO OCCASIONS, THE ASSESSEE SOUGH T ADJOURNMENTS. HE ALSO SUBMITS THAT ON THE DATE OF HEARING ON 29-07-2016 ON BEHALF OF ASSESSEE NONE APPEARED NOR ANY ADJOURNMENT WAS FILED AND LD.AR GO T AUTHORIZATION ON THAT DAY ITSELF WITH NOC AND HE COULD NOT ATTEND BEFORE CIT-A, BUT, HOWEVER, 29- 07-2016 BEING FRIDAY IMMEDIATELY ON NEXT WORKING DA Y I.E. ON 1-8-2016 HE APPROACHED THE FIRST APPELLATE AUTHORITY TO FIND OU T THE STAGE OF THE CASE. BUT, HOWEVER, ON SUCH DATE IT WAS INFORMED THAT THE CASE WAS ALREADY DECIDED EX PARTE. 8. HEARD THE LD.AR AND PERUSED THE MATERIAL AVAILAB LE ON RECORD. WE FIND THAT ON 4-5-2016 AND 16-06-2016 THE LD.AR REPRESENT ING THE ASSESSEE WAS APPEARED AND SOUGHT ADJOURNMENTS. BUT, HOWEVER, ON 11-05-2016 AND 29-07- 2016 NO ONE APPEARED BEFORE THE CIT-A REPRESENTING THE ASSESSEE. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE AUTHORIZED REPR ESENTATIVE GOT AUTHORIZATION ON 29-07-2016 WITH NOC AND HE COULD NOT REPRESENT T HE CASE BEFORE THE CIT-A DUE TO UNAVOIDABLE CIRCUMSTANCES ON THE SAME DAY, B UT HE APPROACHED THE FIRST APPELLATE AUTHORITY ON THE NEXT IMMEDIATE WOR KING DAY I.E ON 01-08- 2016. BUT, HOWEVER, ON SUCH DAY THE APPEAL OF ASSES SEE ALREADY DECIDED EX PARTE. IN VIEW OF THE ABOVE, TAKING INTO CONSIDERAT ION THE SUBMISSIONS OF ITA NO. 2055/KOL/2016 M/S. BIHARIJI COMMERCIALS LTD 4 ASSESSEE AND FACTS AND CIRCUMSTANCES OF THE CASE AN D ON UNDERTAKING AS OFFERED BY THE LD.AR OF THE ASSESSEE BEFORE US, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE CIT-A FOR HIS F RESH ADJUDICATION. THUS, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20-01 -2017. SD/- SD/- DR.A.L. SAINI S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2 0-01-2017 COPIES TO : **PP/SPS (1) APPELLANT/ASSESSEE: M/S. BIHARIJI COMMERCIALS LTD C/O G.P AGARWAL & ASSOCIATES 7A KIRAN SHANKAR RAY ROAD, 2 ND FLOOR, KOLKATA-700 001. (2) DEPARTMENT/RESPONDENT: THE INCOME TAX OFFICER, W 5(3), AAYKAR BHAWAN, P-7 CHOWRINGHEE SQUARE, KOLKATA 700 069. (3)COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL KOLKATA