Amitabh Estates & Finance (P) Ltd., Kolkata V. ITO, Ward-7(1), Kolkata, Kolkata

ITA 2288/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92055 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 31-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHOWNGTHU ADD
• Assessee Lawyers: K M ROY
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI B.P.JAIN , ACCOUNTANT MEMBER ITA NO. 2288 /KOL/ 2014 ASSESSMENT YEAR: 2008 - 09 AMITABH ESTATES & FINANCE (P) LTD. 6/7A, AJC BOSE ROAD, KOLKATA 700 017 [ PAN NO. AACCA7357F ] / V/S . I.T.O, WARD - 7(1) P - 7, CHOWRINGHEE SQUARE, AAYKAR BHAWAN, KOLKATA 700 069 / APPELLANT .. / RESPONDENT / BY APPELLANT SHRI K.M. ROY, FCA / BY RESPONDENT SHRI DAVID Z. CHOWNGTHU, ADD - CIT - DR / DATE OF HEARING 30 - 06 - 2015 / DATE OF PRONOUNCEMENT 03 - 07 - 2015 / O R D E R PER MAHAVIR SINGH , JUDICIAL M EMBER : - THIS A PPEAL BY ASSESSEE IS ARISING OUT OF COMMISSIONER OF INCOME T AX ( APPEALS) - VIII, KOLKATA IN APPEAL NO. 59/CIT(A) - VIII/KOL/11 - 12 DATED 30.10.2014. ASSESSMENT WAS FRAMED BY ITO WARD - 7(1) KOLKATA U/S143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 24.12.2010 FOR ASSESSMENT YEAR 2008 - 09. 2. ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING FOUR GROUNDS: - 1. THAT THE LOWER AUTHORITY HAS PASSED AN EX - PARTE ORDER IN ABSENCE OF APPELLANT IN TOTAL VIOLATION OF SECTION 274(1) OF INCOME TAX ACT, 1961. 2. THE SAID PENALTY ORDER IN ALSO IN VIOLATION OF SECTION 275(1)(A) AS APPEAL UNDER SECTION 246A(1)(A) HAD BEEN PREFERRED BEFORE CIT(APPEALS) - VIII, KOLKATA WHICH IS PENDING ADJUDICATION. ITA NO. 2288/KOL/2014 A.Y. 2008 - 09 AMITABH ESTATES & FINANCE (P) LTD. V. ITO WD - 7(1) KOL PAGE 2 3. THAT THE LOWER AUTHORITY HAS FAILED TO RECOGNIZE THAT EVEN THOUGH THE SUBJECT MATTER OF PENALTY IS NOT THE SUBJECT MATTER OF APPEAL UNDER SECTION 246 A(1)(A), THE APPELLANT RESERVES THE RIGHT TO RAISE ADDITIONAL GROUNDS AT THE TIME OF HEARING OF APPEAL UNDER SECTION UNDER SECTION 246A(1)(A) IN TERMS OF ITS SUBMISSION IN THAT APPEAL AND UNDER SECTION 250(5). 4. THE LOWER AUTHORITY HAS ADDED AS INCOME HAS BEEN FULLY DISCLOSED AND THE CLASSIFICATION OF INCOME AS LONG TERM CAPITAL GAINS CANNOT BE A GROUND FOR PENALTY UNDER SECTION 271(1) AS THERE IS NO CONCEALMENT OF INCOME. 3. AT THE OUTSET, LD. COUNSEL FOR ASSESSEE STATED THAT FIRST ISSUE IS AGAINST THE ORDER OF CIT(A) AND THAT OF THE AO THAT THERE IS A CLEAR - CUT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS THE AO WHILE PASSING PENALTY ORDER HAS NOT ALLOWED THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON QUERY FROM THE BENCH, LD. DR FAIRLY CONCEDED THAT YES THE ISSUE CAN BE REMITTED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION FOR LEVY OF PENALTY. AS THE R E IS A CONSENSUS AND ASSESSEE HAS RAISED A VITAL ISSUE THAT THERE IS A VIOLATION OF PRINCIPLE OF NAT URAL JUSTICE BY THE AO IN PASSING THE EX PARTE ORDER AS THE DETAILS AND FACTS ARE NOT EXAMINED BY THE AO. WE DEEM IT FIT TO REMIT BACK THIS APPEAL TO THE FILE OF AO. ACCORDINGLY , APPEAL OF ASSESSEE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER. WE DIRECT H IM TO PASS A SPEAKING ORDER AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 03 / 07 /201 5 SD/ - SD/ - ( B.P. JAIN ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER KOLKATA, *DKP - 03 / 07 /201 5 ITA NO. 2288/KOL/2014 A.Y. 2008 - 09 AMITABH ESTATES & FINANCE (P) LTD. V. ITO WD - 7(1) KOL PAGE 3 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT - AMITABH ESTATES & FINANCE (P) LTD. 6/7A, AJC BOSE ROAD, KOLKATA 700 017 2 . / RESPONDENT - ITO WARD - 7(1), P - 7 CHOWRINGHEE SQUARE, AAYKAR BHAWAN, KOLKATA - 700 069 3 . / CONCERNED CIT KOLKATA 4 . - / CIT (A) KOLKATA 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,