Pasari Enterprises Pvt. Ltd., , Kolkata V. ITO, Ward - 5(2), Kolkata, Kolkata

ITA 2175/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1825 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 11-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYA CIT REV
• 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, HONBLE AM] I.T.A. NO. 2175/KOL/2017 ASSESSMENT YEAR : 2008-09 M/S. PASARI ENTERPRISES PVT. LTD. ................................APPELLANT C/O. S.C. SONI & CO., 9, INDIA EXCHANGE PLACE, ROOM NO. 7, 5 TH FLOOR, KOLKATA 700 001 [PAN : AADCP 0998 A] INCOME TAX OFFICER.......................................RESPONDENT WARD NO. 5(2), KOLKATA, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 APPEARANCES BY: SHRI VIVEK SHAW, ACCOUNTANT ASSISTANT APPEARING ON BEHALF OF THE ASSESSEE. SHRI AMITAVA BHATTACHARYA, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 11, 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 17, 2018 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) -2, KOLKATA DATED 01.06.2017 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHO DERIVES INCOME FROM RENT AND UPGRADATION CHARGES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2008 DECLARING A TOTAL INCOME AT NIL. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 23.11.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE A.O. AT RS. 6,93,788/- AFTER MAKING CERTAIN ADDITIONS. 2 I.T.A. NO. 2175/KOL/2017 A.Y. 2008-09 PASARI ENTERPRISES PVT. LTD. 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) DISPUTING THE ADDITIONS MADE BY THE A.O. AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME AS STATED IN THE TABULAR FORM GIVEN IN HIS IMPUGNED ORDER AS UNDER, THE LD. CIT(A) PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER PASSED EX-PARTE: DATE OF NOTICE DATE OF HEARING REMARKS 08.04.20 16 04.05.2016 AS PER RECORD, THE AR APPEARED AND CASE WAS ADJOURNED FOR 03.06.2016. 03.06.2016 AS PER RECORD, NON-APPEARED NOR ANY ADJOURNMENT WAS FILED / AVAILABLE ON RECORD. 16.06.2016 AS PER ORDER SHEET ENTRY, THE AR APPEARED AND CASE WAS ADJOURNED FOR 20.06.2016. 20.06.2016 AS PER ORDER SHEET ENTRY, THE AR APPEARED AND CASE WAS ADJOURNED. 22.07.2016 05.08.2016 AS PER RECORD NON-APPEARED NOR ANY ADJOURNMENT WAS FILED / AVAILABLE ON RECORD. 06.03.2017 10.04.2017 THE NOTICE WAS COME BACK WITH REMARKS D/C FOR I/S 20.03.2017/21.032017 FINAL. 26.04.2017 23.05.2017 THE NOTICE WAS COME BACK WITH REMARKS D/C FOR I/S 02.05.2017/03.05.2017 FINAL. AS PER SPEED POST TRACKING SYSTEM, THE NOTICE WAS NOT SERVED BUT THERE ARE SOME REMARKS ON THE ENVELOPE SUCH AS DOOR LOCKED / INTIMATION SERVED / UNCLAIMED. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3 I.T.A. NO. 2175/KOL/2017 A.Y. 2008-09 PASARI ENTERPRISES PVT. LTD. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN GROUND NO 1, THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE ON THE GROUND OF LACK OF PROPER AND SUFFICIENT OPPORTUNITY. IN THIS REGARD, IT IS OBSERVED THAT ALTHOUGH THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) ON SEVEN DIFFERENT DATES, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAD APPEARED AND SOUGHT ADJOURNMENT ON THREE OF THE FIRST FIVE DATES OF HEARING. AS NOTED BY THE LD. CIT(A) HIMSELF, ALTHOUGH THE NOTICES FOR THE 6 TH AND 7 TH HEARINGS WERE SENT TO THE ASSESSEE, THE SAME HAD COME BACK UNDELIVERED. THE SAID NOTICES THUS WERE NOT RECEIVED BY THE ASSESSEE WHICH RESULTED IN THE NON-APPERANCE OF THE ASSESSEE FOR HEARING BEFORE THE LD. CIT(A) ON THE SAID DATES. KEEPING IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT THE ASSESSEE CANNOT BE SAID TO HAVE GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF HEARING BY THE LD. CIT(A) BEFORE DISMISSING ITS APPEAL VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. MOREOVER, AS NOTED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER, WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE HIM AND ALTHOUGH THE SAME ARE STATED TO BE CONSIDERED BY THE LD. CIT(A), THERE IS NO DISCUSSION WHATSOEVER IN HIS IMPUGNED ORDER REGARDING THE ARGUMENTS RAISED BY THE ASSESSEE NOR ARE THERE ANY REASONS GIVEN BY HIM FOR REJECTING THE SAME. AS PER PROVISIONS OF SUB-SECTION 6 OF SECTION 250, THE ORDER OF THE LD. CIT(A) DISPOSING OF THE APPEAL HAS TO BE IN WRITING AND SHOULD STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. A PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) SHOWS THAT THE SAME IS NOT IN ACCORDANCE WITH SECTION 250(6). I, THEREFORE, SET ASIDE THE 4 I.T.A. NO. 2175/KOL/2017 A.Y. 2008-09 PASARI ENTERPRISES PVT. LTD. IMPUGNED ORDER PASSED BY THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE EX-PARTE AND REMIT THE MATTER BACK TO HIM WITH THE DIRECTION TO DISPOSE THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JANUARY, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER DATED: 17/01/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. PASARI ENTERPRISES PVT. LTD., C/O. S.C. SONI & CO., 9, INDIA EXCHANGE PLACE, ROOM NO. 7, 5 TH FLOOR, KOLKATA 700 001. 2. ITO, WARD 5(2), P-7, CHOWRINGHEE SQUARE, KOLKAA 700 069 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA