JAS Equipment & Engineers Pvt. Ltd., Durgapur V. ACIT, CIR-2, Durgapur, Durgapur

ITA 259/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1629 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN ADD L
• Assessee Lawyers: MANISH TIWARI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI J.SU DHAKAR REDDY, AM ] I.T.A NO. 259/KOL/201 5 ASSESSMENT YEAR : 2010-1 1 JAS EQUIPMENT & ENGINEERS PVT. LTD. -VS.- A.C.I.T., CIRLCE-2, DURGPUR DURGAPUR [PAN : AABCJ 9126 E] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI MANISH TIWARI , FCA FOR THE RESPONDENT : SHRI SALLONG YADEN, ADD L. CIT DATE OF HEARING : 14.08.2017. DATE OF PRONOUNCEMENT : 23.08.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.12.2014 OF CIT- (A)-DURGAPUR RELATING TO A.Y.2010-11. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINE SS OF MANUFACTURING OF ENGINEERING GOODS. FOR A.Y.2010-11 THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.99,99,152/-. AN ORDER OF ASSESSMENT U/S 143(3) O F THE INCOME TAX ACT, 1961 (ACT) DATED 31.03.2013 WAS PASSED BY THE AO DETERMINING T HE TOTAL INCOME OF THE ASSESSEE AT RS.2,15,78,214/-. THE AO MADE SEVERAL ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE IN THE ORDER OF ASSESSMENT PASSED U/S 143(3) OF THE AC T. 3. AGGRIEVED BY VARIOUS ADDITIONS MADE BY THE A O THE ASSESSEE PREFERRED APPEAL BEFORE CIT(A). THE FIRST HEARING BEFORE CIT(A) WAS ON 16.10.2014. THE ASSESSEE SOUGHT ADJOURNMENT ON THE GROUND THAT THE AUTHORISED REPRE SENTATIVE OF THE ASSESSEE WAS SICK AND THE CASE WAS ADJOURNED TO 11.11.2014. ON THE SA ID DATE I.E., 11.11.2014, ON THE VERY 2 ITA NO.259/KOL/2015 JAS EQUIPMENT & ENGINEERS PVT. LTD. A.YR.2010-11 2 SAME GROUND THE PROCEEDINGS WERE ADJOURNED TO18.11. 2014. THEREAFTER THE APPEAL WAS ADJOURNED AND FIXED FOR HEARING ON 11.12.2014. THE ASSESSEE SOUGHT ADJOURNMENT ON THE GROUND THAT THE AUTHORISED REPRESENTATIVE WAS NOT A VAILABLE AND THE CASE WAS ADJOURNED TO 19.12.2014. ON 19.12.2014 AGAIN ON THE SAME GROU ND OF NON AVAILABILITY OF THE AUTHORISED REPRESENTATIVE AN ADJOURNMENT WAS SOUGHT . THE REQUEST WAS REFUSED BY CIT(A) AND THE APPEAL OF THE ASSESSEE WAS DECIDED E XPARTE CONFIRMING THE ORDER OF AO. 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. GROUND NO.1 RAISED BY THE ASSESSEE BEFORE TH E TRIBUNAL READS AS FOLLOWS :- (A) THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE APPELLANT SOUGHT FOR ADJOURNMENTS FROM TIME TO TIME SINCE COMPETENT REPR ESENTATIVE TO HANDLE THE APPEAL COULD NOT BE APPOINTED TILL THEN. (B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) IS WRONG IN REJECTING ADJOURNMENT PETITION DATED 19.12.2014 AND THEREBY DECIDING THE APPEAL ON EXPARTE VIEW. (C) THAT ON THE FACT AND IN THE CIRCUMSTANCES OF TH E CASE, LD. CIT(A) HAS ERRED IN DISMISSING ASSESSEE'S APPEAL ON EXPARTE VIEW WITHOU T APPRECIATING THE CONSTRAIN AND WITHOUT ALLOWING REASONABLE, ADEQUATE AND EFFEC TIVE OPPORTUNITY OF HEARING. 6. AT THE TIME OF HEARING OF THIS APPEAL THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT ONE SHRI A.N.BASU ROY CHOUDHURY, MAN AGING DIRECTOR OF THE ASSESSEE, WHO WAS LOOKING AFTER THE TAX MATTER WAS SICK AND W AS BEING TREATED FOR KIDNEY RELATED AILMENTS AT THE RELEVANT POINT OF TIME WHEN THE PRO CEEDINGS BEFORE CIT(A) WERE IN PROGRESS. DUE TO HIS SICKNESS HE WAS NOT ABLE TO CO ORDINATE WITH THE AUTHORISED REPRESENTATIVE. IT WAS ALSO BROUGHT TO OUR NOTICE T HAT BETWEEN 16.10.2014 AND 19.12.2014, WHEN THE PROCEEDINGS BEFORE CIT(A) WERE IN PROGRESS, THE MANAGING DIRECTOR WAS SICK AND THEREFORE THE PROCEEDINGS BEF ORE CIT(A) COULD NOT BE PROPERLY REPRESENTED. IT WAS SUBMITTED THAT THERE WAS LACK OF PROPER OPPORTUNITY AFFORDED TO THE 3 ITA NO.259/KOL/2015 JAS EQUIPMENT & ENGINEERS PVT. LTD. A.YR.2010-11 3 ASSESSEE BY CIT(A). THE LD. COUNSEL FOR THE ASSESSE E ALSO BROUGHT TO OUR NOTICE THAT ULTIMATELY THE MANAGING DIRECTOR DIED IN MARCH, 201 7. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE SHOULD BE AFFORDED AN OPPORTUNITY OF P UTTING FORTH HIS CASE BEFORE CIT(A) AND THEREFORE THE ORDER OF CIT(A) SHOULD BE SET ASI DE AND THE ISSUES RAISED BEFORE THE CIT(A) SHOULD BE DIRECTED TO BE DECIDED BY CIT(A)ON MERITS. 7. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION T O THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND ARE OF THE VIEW THAT THERE WAS LACK OF PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BY CIT(A). ACCEPTING THE SUB MISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, WE SET ASIDE THE ORDER OF CIT(A) AND REMA ND THE ISSUE RAISED BY THE ASSESSEE BEFORE THE CIT(A) TO BE DECIDED AFRESH BY THE CIT(A ) ON MERITS AFTER AFFORDING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 23.08.2017. SD/- SD/- [J.SUDHAKAR REDDY] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23.08.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.JAS EQUIPMENT & ENGINEERS PVT. LTD., S-12, DURGAP UR INDUSTRIAL ESTATE, DURGAPUR- 713212. 2. A.C.I.T., CIRCLE-2, DURGAPUR. 3. CIT(A)-DURGAPUR C.I.T.-DURGAP UR. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVA TE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 4 ITA NO.259/KOL/2015 JAS EQUIPMENT & ENGINEERS PVT. LTD. A.YR.2010-11 4