Basudeb Ghosh, Burdwan V. I.T.O.,Ward-1(4), Burdwan

ITA 2500/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9366 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 26-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT-KZ & SRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 2500/KOL/2019 ASSESSMENT YEAR: 2015-16 BASUDEB GHOSH....................................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES SIDDHA GIBSON 1, GIBSON LANE SUITE 213 2 ND FLOOR KOLKATA 700 069 [PAN: AMXPG 0859 L] VS. INCOME TAX OFFICER, WARD-1(4), BURDWAN......................................................RESPONDENT APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : JANUARY 3 RD , 2020 DATE OF PRONOUNCING THE ORDER : JANUARY 3 RD , 2020 O R D E R PER P.M. JAGTAP, VP-KZ :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)- BURDWAN DATED 24.09.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS ENGAGED IN TRADING OF TWO-WHEELERS AND RETAIL BUSINESS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 31.03.2017 DECLARING A TOTAL INCOME OF RS.2,88,750/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 25.10.2017, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS.16,49,823/- AFTER MAKING AN ADDITION OF RS.13,61,073/- BEING PROFIT @8% ON THE ALLEGED UNDISCLOSED TURNOVER. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). THE SAID APPEAL WAS FIXED FOR HEARING BEFORE THE LD. CIT(A) ON TWO OCCASIONS I.E. 05.03.2019 AND 13.08.2019 AND SINCE NOBODY APPEARED ON BEHALF OF THE ASSESSEE ON THE SAID DATES, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 24.09.2019 PASSED EX-PARTE . AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AN APPLICATION WAS FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE HEARING FIXED BEFORE THE LD. CIT(A) ON 13.08.20 19. HE HAS PLACE ACKNOWLEDGED BY THE OFFICE OF THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) DID NOT CONSIDER THE REQUEST OF THE ASSESSEE FOR ADJOURNMENT AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE HEARD THUS HAS NOT GIVEN BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING HIS APPEAL AND THERE IS A CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. THE LD. DR HAS NOT DISPUTED THIS POSITION WHICH IS CLEAR PROVISIONS OF SUB- SECTION (6) OF SECTION 250 DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THERE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) THE MATTER BACK TO HIM FOR ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEF ORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. KOLKAT SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 03.01.2020 {SC SPS} 2 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AN APPLICATION WAS FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE HEARING FIXED BEFORE 19. HE HAS PLACE D ON RECORD A COPY OF THE SAID APPLICATION DULY ACKNOWLEDGED BY THE OFFICE OF THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) DID NOT CONSIDER THE REQUEST OF THE ASSESSEE FOR ADJOURNMENT AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON -PROSECUTION VIDE HIS ORDER PASSED EX CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE , PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD THUS HAS NOT GIVEN BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING HIS APPEAL AND THERE IS A CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. THE LD. DR HAS NOT DISPUTED THIS POSITION WHICH IS CLEAR LY EVIDENT FROM THE RECORD. MOREOVER, AS PER THE SECTION (6) OF SECTION 250 OF THE ACT , THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THERE ON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL ORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL KOLKAT A, THE 3 RD DAY OF JANUARY, 2020. I.T.A. NO. 2500/KOL/2019 ASSESSMENT YEAR: 2015-16 BASUDEB GHOSH AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AN APPLICATION WAS FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE HEARING FIXED BEFORE D ON RECORD A COPY OF THE SAID APPLICATION DULY ACKNOWLEDGED BY THE OFFICE OF THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) DID NOT CONSIDER THE REQUEST OF THE ASSESSEE FOR ADJOURNMENT AND PROCEEDED TO DISMISS THE EX -PARTE . AS RIGHTLY PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD THUS HAS NOT GIVEN BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING HIS APPEAL AND THERE IS A CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. THE LD. DR HAS NOT MOREOVER, AS PER THE , THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR ON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. EX -PARTE AND REMIT DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL ORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL SD/- [ P.M. JAGTAP ] VICE-PRESIDENT COPY OF THE ORDER FORWARDED TO: 1. BASUDEB GHOSH C/O. SUBASH AGARWAL & ASSOCIATES SIDDHA GIBSON 1, GIBSON LANE SUITE 213 2 ND FLOOR KOLKATA 700 069 2. INCOME TAX OFFICER, WARD- 1(4), BURDWAN 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 C/O. SUBASH AGARWAL & ASSOCIATES 1(4), BURDWAN 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 2500/KOL/2019 ASSESSMENT YEAR: 2015-16 BASUDEB GHOSH TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES