Sri Shrawan Kumar Todi, Kolkata V. DCIT, CIRCLE - 1(2), KOLKATA, KOLKATA

ITA 2333/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4901 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 17-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: A BOSE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1)

Judgement Text

1 ITA NO.2333/KOL/2017 SHRI SHRAWAN KUMAR TODI A.Y.2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI A. T. VARKEY, JM & DR.A.L.SAINI, AM] I.T.A. NO. 2333/KOL/2017 ASSESSMENT YEAR: 2012-13 SHRI SHRAWAN KUMAR TODI PAN ABWPT 5354 P VS. D.C.I.T. CIRCLE-1 (2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 22.10.2018 DATE OF PRONOUNCEMENT 26 .10.2018 FOR THE APPELLANT SHRI A.BOSE, ADVOCATE FOR THE RESPONDENT SHRI C.J.SINGH, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-1, KOLKATA DATED 09.10.2017 FOR A.Y.2012-13. 2. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ASSESSMENT ORDER HAS BEEN PASSED WITHOUT AFFORDING PROPER OPPO RTUNITY TO THE ASSESSEE. FOR SUPPORTING HIS AFORESAID SUBMISSION HE DREW OUR ATT ENTION TO THE ASSESSMENT ORDER DATED 31.03.2015 WHEREIN THE AO HAS SPECIFICALLY STATED I N PARA-1 OF HIS ORDER THAT THE CASE WAS RE-FIXED BY ISSUING NOTICE U/S 142(1) ALONG WIT H QUESTIONNAIRE DATED 25.03.2015. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTIO N TO THE FACT THAT THE MATTER WAS FIXED ON 28.03.2015 WHICH FALLS ON A SATURDAY AND W HEN HE APPEARED THE CASE WAS ADJOURNED TO 30 TH MARCH 2015. AND ON 30 TH MARCH, 2015 WHEN HE APPEARED BEFORE THE 2 ITA NO.2333/KOL/2017 SHRI SHRAWAN KUMAR TODI A.Y.2012-13 AO, HE WAS TOLD THAT THE ASSESSMENT ORDER HAS ALREA DY BEEN PASSED. ACCORDING TO THE LD. COUNSEL EVEN THOUGH THIS FACT WAS BROUGHT TO THE NO TICE OF THE LD. CIT(A) HE DID NOT GIVE MUCH ATTENTION TO THE AFORESAID ACTION ON THE PART OF THE AO, WHICH RESULTED IN VIOLATION OF NATURAL JUSTICE TO THE ASSESSEE AT THE STAGE OF FRAMING OF ASSESSMENT. WE NOTE THAT INITIALLY THE CASE WAS UNDER THE JURISDIC TION OF AO CENTRAL-1, KOLKATA AND LATER THE DEPARTMENT WHILE CARRYING OUT RE-STRUCTURING OF THE JURISDICTION TRANSFERRED THE CASE TO DCIT, CIRCLE-1(2), KOLKATA. WE NOTE THAT THE AO HAS CLEARLY STATED THAT HE HAD ISSUED QUESTIONNAIRE U/S 142(1) ON 25.03.2015. WE N OTE FROM THE COPY OF THE DIARY WHICH HAS BEEN PRESENTED BEFORE US BY THE LD AR THA T THE CASE WAS FIXED ON 28.03.2015. WHICH FALLS ON A SATURDAY AND THOUGH TH E MATTER WAS AGAIN FIXED ON 30 TH MARCH, 2015, THE ASSESSMENT ORDER HAS BEEN PASSED O N 31 ST MARCH, 2015 WHICH MEANS THE ASSESSEE WAS PUT ON NOTICE JUST BEFORE 7 DAYS B EFORE PASSING THE ASSESSMENT ORDER. SO THE ASSESSEE HAS MADE OUT A CASE THAT HE DID NOT GET PROPER OPPORTUNITY TO DEFEND HIS CASE BEFORE THE AO. IN A SIMILAR CASE THE HONBLE S UPREME COURT ( 3 JUDGES BENCH) IN THE CASE OF TIN BOX COMPANY VS CIT 249 ITR 216 HE LD AS UNDER :- 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN TH ESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORI TY, THAT READS THUS : 'WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEE'S SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD.' 2. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEF ORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SELLING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASI DE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FR ESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 3. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ?' 3 ITA NO.2333/KOL/2017 SHRI SHRAWAN KUMAR TODI A.Y.2012-13 4. IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. 5. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLEN GE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF TH E TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHO RITY FOR FRESH CONSIDERATION, AS AFORESTATED. NO ORDER AS TO COSTS. 3. THEREFORE SINCE THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO, WE FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN TIN BOX (SUPRA) SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO FOR FRAMING DE-NOVO ASSESSMENT. NEEDLESS TO SAY, THAT T HE ASSESSEE TO BE GIVEN OPPORTUNITY OF HEARING BEFORE FRAMING THE FRESH ASSESSMENT ORDE R. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT O N 26 TH OCTOBER 2018 SD/- SD/- (DR.A.L.SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26/10/2018 RG(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI SHRAWAN KUMAR TODI, 2/2B, SARAT BO SE ROAD, KOLKATA- 700020. 2 RESPONDENT D.C.I.T., CIRCLE-1 (2), KOLKATA 3. C.I.T.(A)-1, KOLKATA 4. C.I.T. KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR . ITAT, KOLKATA BENCHES, KOLKATA.