Tapan Kumar Chaturvedi , Kolkata V. ACIT, Circle - 28, , Kolkata

ITA 2305/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9927 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-04-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 09-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL CIT SR DR REVEN
• Assessee Lawyers: K R SRIRAM
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B(SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT] I.T.A. NO. 2305/KOL/2018 ASSESSMENT YEAR: 2011-12 TAPAN KUMAR CHATURVEDI.................................................................APPELLANT C/O. K.R. SRIRAM & CO., 2H, MERLIN LINKS, 166B, S.P. MUKHERJEE ROAD, KOLKATA. [PAN: ACKPC 4886 E] ACIT CIR - 28 KOLKATA.................................RESPONDENT AAYAKAR BHAWAN DAKSHIN, 2, GARIATHAT ROAD (SOUTH), KOLKATA. APPEARANCES BY: SHRI K.R. SRIRAM, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI P.K. MONDAL, ADDL. CIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : APRIL 02, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 02, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 12, KOLKATA DATED 25.06.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 12.08.2011 DECLARING A TOTAL INCOME OF RS. 41,80,710/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 08.03.2011, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 44,32,960/- AFTER MAKING THE ADDITION OF RS. 2,32,250/- ON ACCOUNT OF INTEREST PAID BY THE ASSESSEE ON BORROWED CAPITAL. THEREAFTER, THE ASSESSEE MADE AN APPLICATION U/S 154 BEFORE THE AO SEEKING RECTIFICATION OF THE ORDER PASSED U/S 143(3). IN THE SAID APPLICATION, THE ASSESSEE CLAIMED DEDUCTION OF INTEREST OF RS. 2,32,250/- AND ALSO A DEDUCTION OF RS. 2 I.T.A. NO. 2305/KOL/2018 ASSESSMENT YEAR: 2011-12 TAPAN KUMAR CHATURVEDI 29,340/- U/S 80D OF THE INCOME TAX ACT, 1961 ON THE GROUND THAT THERE WERE MISTAKES IN THE ORDER PASSED U/S 143(3) IN NOT ALLOWING THE SAID DEDUCTION. THE AO DID NOT FIND MERIT IN THE APPLICATION FILED BY THE ASSESSEE AND REJECTED THE SAME. HE, HOWEVER, FOUND THAT THERE WAS ACTUALLY A MISTAKE IN THE ORDER U/S 143(3) IN DETERMINING THE ALV OF THE ASSESSEES PROPERTY ON LOWER SIDE. ACCORDINGLY, HE RECTIFIED THE SAID MISTAKE AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 44,98,760/- AS PER THE ORDER DATED 20.01.2015 PASSED U/S 154 OF THE ACT. 3. AGAINST THE ORDER PASSED BY THE AO U/S 154, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART 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 OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 25.06.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AS NOTED AT THE OUTSET, THERE IS A DELAY OF 46 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE SAID DELAY AS UNDER: 1. THAT I RECEIVED THE ORDER OF THE LD. CIT(A) ONLY ON 4 TH SEPTEMBER, 2018. 2. I BEING IN A TRANSFERRABLE JOB, HAD REGISTERED PARENTAL ADDRESS OF KOLKATA AS THE ADDRESS OF CORRESPONDENCE. 3. IN JANUARY 2018, THE PARENTS HAD TO LEAVE KOLKATA FOR MEDICAL REASONS TO THEIR HOME TOWN AT ALLAHABAD, WHEREIN THEIR STAY GOT EXTENDED TO OVER 8 MONTHS FOR MEDICAL TREATMENT. 4. THE HOUSE IN KOLKATA THUS WAS CLOSED FOR THE PERIOD FROM JANUARY, 2018 TILL AUGUST, 2018 AND NO LETTERS WERE RECEIVED BY THE ASSESSEE OR HIS FAMILY MEMBERS. 3 I.T.A. NO. 2305/KOL/2018 ASSESSMENT YEAR: 2011-12 TAPAN KUMAR CHATURVEDI 5. IN AUGUST / SEPTEMBER, 2018, WHEN THE PARENTS RETURNED, THEY WERE HANDED OVER ALL CORRESPONDENCES WHICH WERE RECEIVED AT THE HOUSE BY THE LANDLORD. 6. THE ASSESSEE WAS THEN HANDED OVER THE ORDER BY HIS PARENTS ON 4 TH SEPTEMBER, 2018. 7. ON RECEIPT OF THE ORDER HE CONTACTED HIS LEGAL COUNSELS WHO TOOK STEPS TO FILE THE APPEALS ON 8 TH NOVEMBER, 2018. 5. KEEPING IN VIEW THE EXPLANATION GIVEN BY THE ASSESSEE AS ABOVE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS ACCORDINGLY CONDONED AND THE APPEAL OF THE ASSESSEE IS BEING DISPOSED ON MERIT. 6. IN SUPPORT OF THE ASSESSEES CASE ON THE PRELIMINARY ISSUE RAISED IN GROUND NO. 1 CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) IN THE MONTH OF MAY AND JUNE, 2018. HE HAS CONTENDED THAT THE NOTICES OF THE SAID HEARINGS HOWEVER WERE NOT RECEIVED BY THE ASSESSEE FOR THE REASONS AS ALREADY MENTIONED IN HIS AFFIDAVIT WHICH IS FILED IN SUPPORT OF THE APPLICATION FOR THE CONDONATION OF DELAY IN FILING THIS APPEAL. AFTER GOING THROUGH THE SAID AFFIDAVIT, I FIND THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL FOR HEARING IN THE MONTH OF MAY AND JUNE, 2018. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 4 I.T.A. NO. 2305/KOL/2018 ASSESSMENT YEAR: 2011-12 TAPAN KUMAR CHATURVEDI 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND APRIL, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 02/04/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. TAPAN KUMAR CHATURVEDI, C/O. K.R. SRIRAM & CO., 2H, MERLIN LINKS, 166B, S.P. MUKHERJEE ROAD, KOLKATA. 2. ACIT, CIR-28, KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA