Bijoy Choudhary, Kolkata V. ACIT, Circle - 34, Kolkata , Kolkata

ITA 2443/KOL/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8800 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 11-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: MANISH BAJORIA
• Keywords: Principle of natural justice
• Section: 2

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 2443/KOL/2017 ASSESSMENT YEAR: 2014-15 BIJOY CHOUDHARY (PAN : ACMPC 9297 R) VS. ACIT, CIRCLE 34, KOLKATA APPELLANT RESPONDENT DATE OF HEARING 10.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 FOR THE APPELLANT SHRI MANISH BAJORIA, FCA FOR THE RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS APPEAL PREFERRED BY THE ASSESSEE COMPANY AG AINST THE ORDER OF THE LD. CIT(A) 10, KOLKATA DATED 12.09.2017 FOR ASSESSMENT YEAR 2014-15. 2. AT THE OUTSET ITSELF, THE LEARNED COUNSEL FOR TH E ASSESSEE BROUGHT TO OUR NOTICE THAT AN EX-PARTE ORDER HAS BEEN PASSED BY THE LD. CIT(A) WI THOUT HEARING THE AR OF THE ASSESSEE. IT WAS ALSO BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) FIXED THE CASE FOR THE FIRST TIME ON 09.08.2017 WHEREIN THE ASSESSEE HAD APPLIED FOR ADJ OURNMENT, WHICH WAS GRANTED TO IT AND THE MATTER WAS FIXED ON 05.09.2017 WHEREIN ACCORDIN G TO THE LEARNED AR, SHRI MANISH BAJORIA, FCA (WHO IS BEFORE US) CLAIMS TO HAVE APPE ARED IN THE OFFICE OF THE CIT(A) ON 05.09.2017. HOWEVER ACCORDING TO HIM, THE LD. CIT(A ) WAS NOT IN THE OFFICE AND STAFF THERE TOLD HIM THAT HE WAS NOT PRESENT IN THE OFFICE. SO HE LEFT THE OFFICE OF LD. CIT(A). THEREAFTER ACCORDING TO THE LEARNED AR TO HIS ASTONISHMENT ON 12.09.2017 AFTER 7 DAYS, THE IMPUGNED EX-PARTE ORDER WAS PASSED, THEREFORE, HE PRAYED THA T THERE WAS VIOLATION OF GROSS NATURAL ITA NO. 2443/K/2017 A.Y. 2014-15 BIJOY CHOUDHARY 2 JUSTICE AND SO HE PRAYED THAT THE APPEAL MAY BE RES TORED BACK TO THE LD. CIT(A) TO BE DECIDED ON MERIT. 3. THE PLEA OF THE LEARNED AR, TO RESTORE BACK TO A O HAS BEEN VEHEMENTLY OPPOSED BY THE LEARNED DR AND DOES NOT WANT US TO INTERFERE IN THE IMPUGNED ORDER OF LD. CIT(A). 4. AFTER HAVING HEARD BOTH THE PARTIES, WE NOTE THA T THE LD. CIT(A) HAVING FIXED THE MATTER FOR THE FIRST TIME ON 09.08.2017 ON THE REQU EST OF THE ASSESSEE ADJOURNED IT TO 05.09.2017. HOWEVER ACCORDING TO LD. AR WHEN HE PRE SENTED HIMSELF AT THE OFFICE OF THE LD. CIT(A) ON 05.09.2017, HE WAS MADE TO UNDERSTAND THAT CIT(A) WAS NOT PRESENT IN THE OFFICE, SO HE LEFT. LATER TO HIS ASTONISHMENT HE CA ME TO KNOW THAT CIT(A) HAD DECIDED THE APPEAL EX-PARTE OBSERVING THAT NONE APPEARED ON BEH ALF OF THE ASSESSEE. ACCORDING TO THE LEARNED AR, HE HAD IN FACT APPEARED AND WAS PRESENT IN THE OFFICE OF THE LD. CIT(A) ON 05.09.2017. THESE FACTS ARE CORROBORATED BY A PERUS AL OF THE IMPUGNED ORDER. WE NOTE THAT IMPUGNED ORDER HAS BEEN PASSED BY LD. CIT(A) ON 12 TH SEPTEMBER, 2017WHEREIN THE AFORESAID EVENTS WE DISCERN. SINCE THE IMPUGNED ORD ER IS AN EX-PARTE ORDER PASSED WITHOUT HEARING THE LEARNED AR OF THE ASSESSEE, THE ORDER I S FRAGILE FOR VIOLATION OF NATURAL JUSTICE. THEREFORE WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A)AND DIRECT HIM TO DECIDE THE APPEAL AFRESH AFTER HEARING THE ASSESSEE IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.12.20 18 SD/- SD/- (DR. A.L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28TH DECEMBER, 2018 BISWAJIT.(SR.P.S.) ITA NO. 2443/K/2017 A.Y. 2014-15 BIJOY CHOUDHARY 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT BIJOY CHOUDHARY (VIVEK ENTERPRISE), DIAMOND HERITAGE, 16,STRAND ROAD, 10 TH FLOOR, ROOM NO. 1007, KOLKATA 700 001. 2 RESPONDENT ACIT, CIRCLE 34, AAYAKAR BHAWAN POOR VA, 110, SHANTI PALLY, KOLKATA 700 107. 3. THE CIT(A) -10, KOLKATA. (SENT THROUGH E-MAIL) 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR/H.O.O ITAT, KOLKATA