Laxmi Finleasecap Private Limited, Kolkata V. DCIT, Cir-1(1), Kolkata, Kolkata

ITA 264/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6169 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 10-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Corroborative evidences; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S. S. GODARA, J.M & DR. A.L. SAINI, A.M ITA NO.264/KOL/2017 (A.Y: 2012-13) LAXMI INDIA FINLEASECAP (P) LTD. 33, CHITTARANJAN AVENUE, 9 TH FLOOR, ROOM NO.908B, KOLKATA 700 012. VS. DCIT, CIRCLE-1(1), KOLKATA AAYAKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO.: AAACL 2151 N ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI SUNIL SURANA, FCA REVENUE BY : SHRI A. BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 11/07/2018 /DATE OF PRONOUNCEMENT: 18/07/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA IN APPEAL NO.350/CIT(A)-1/CIRCLE-1(1)/2015-16, DATED 18.11.2016, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 30.03.2015. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDER AND NON-SPEAKING ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. ITA NO.264/KOL/2017 A.Y: 2012-13 LAXMI INDIA FINLEASECAP (P) LTD. 2 4. WE NOTE THAT LD. CIT(A) PASSED THE EX PARTE ORDER STATING THE FOLLOWING: THE HEARING IN THIS CASE WAS INITIALLY FIXED ON 22.08.2016, ON THE APPOINTED DATE SHRI RAHUL CHAUDHURY, A.R HAD APPEARED THE CASE WAS ADJOURNED ON THE A.RS REQUEST FOR 30.08.2016. THE CASE WAS AGAIN FIXED SEVERAL TIMES FOR HEARING ON 19.09.2016, 11.11.2016 BUT ON THAT DATES NEITHER THE A.R OF THE APPELLANT HAD APPEARED NOR SUBMITTED ANY SUBMISSION IN THIS REGARD. UNDER THESE CIRCUMSTANCES, IT APPEARS THAT THE APPELLANT DOES NOT WANT TO PURSUE THIS APPEAL; THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE PRESENT APPEAL IS AGAINST THE ORDER U/S 143(3) PASSED BY THE A.O. I HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND THE ORDER OF THE A.O AS ALREADY DISCUSSED ABOVE. THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION FOR SUBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED BY HIM DESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. IN THE INSTANT CASE, THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BASIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O IN THE RESULT, APPEAL FILED BY THE APPELLANT IS DISMISSED. WE NOTE THAT THE ASSESSEE HAS PARTICIPATED IN APPELLATE PROCEEDINGS, AS THE AR OF THE ASSESSEE HAD APPEARED ON 22.08.2016 AND REQUESTED FOR ADJOURNMENT, AS ADMITTED BY THE LD. CIT(A) IN THE PARA MENTIONED ABOVE. THE LD. COUNSEL ALSO STATED THAT THE ASSESSEE HAS RAISED GROUND NO.2 WHEREIN HIS MAIN GRIEVANCE IS THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUES GROUND-WISE IN RESPECT OF THE GROUNDS RAISED BY THE ASSESSEE IN MEMO OF APPEAL AND IN GROUND NO.3, THE ASSESSEE STATED THAT THE LD. CIT(A) HAS NOT EXAMINED ASSESSMENT RECORDS AND RELEVANT DOCUMENTS, AND HAS NOT PASSED ANY SPEAKING ORDER. THEREFORE THE LD. COUNSEL FOR THE ASSESSEE PRAYED THE BENCH THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 5. WE NOTE THAT THE HONBLE SUPREME COURT IN M.S.GILL VS THE CHIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETWEEN ADMINISTRATIVE AND QUASI-JUDICIAL FUNCTION VIS--VIS THE DOCTRINE OF NATURAL JUSTICE IS PRESUMABLY OBSOLESCENT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHICH MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIVE ITA NO.264/KOL/2017 A.Y: 2012-13 LAXMI INDIA FINLEASECAP (P) LTD. 3 PROCEEDINGS. THE RULES OF NATURAL JUSTICE ARE ROOTED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THEOLOGY. THEY ARE MANIFESTED IN THE TWIN PRINCIPLES OF NEMO JUDEX IN PARTE SUA ( NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDI ALTEREM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT THAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE. WE NOTE THAT ASSESSEE HAS PARTICIPATED IN THE APPELLATE PROCEEDINGS AND THIS IS EVIDENT FROM THE ORDER OF THE LD. CIT(A). WE NOTE THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUE GROUND-WISE. GROUND NO.2 RAISED BY THE ASSESSEE IS GIVEN BELOW FOR READY REFERENCE: 2. FOR THAT THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN LAW SINCE THE LD. CIT(A) HAS NOT DECIDED THE ISSUES GROUNDWISE IN RESPECT OF THE GROUNDS RAISED BY THE APPELLANT IN THE MEMO OF APPEAL. THEREFORE, IT IS EVIDENTLY CLEAR THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUE GROUND WISE BASED ON THE MERITS AND BASED ON THE MATERIAL AVAILABLE IN THE ASSESSMENT RECORDS. WE NOTE THAT ASSESSEE HAS RAISED GROUND NO.3 STATING THAT THE LD. CIT(A) HAS NOT PASSED SPEAKING ORDER. GROUND NO.3 RAISED BY THE ASSESSEE IS GIVEN BELOW FOR READY REFERENCE: 3. FOR THAT THE LD. CIT(A) IS BAD IN LAW SINCE THE ORDER PASSED IS NOT ANY SPEAKING ORDER NOR THE CIT(A) HAS LOOKED INTO THE ASSESSMENT RECORDS AND RELEVANT MATERIALS TO CONCLUDE THAT THE ORDER OF THE LD. A.O CANNOT BE INTERFERED WITH. 6. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESSEE HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT THE LD. CIT(A) DID NOT DISCUSS THE ASSESSEES CASE ON MERITS BASED ON THE MATERIAL AVAILABLE BEFORE HIM HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. WE ALSO NOTE THAT THE ASSESSING OFFICER HAS PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT, AFTER TAKING INTO ACCOUNT THE DOCUMENTS, EVIDENCES AND EXPLANATION ITA NO.264/KOL/2017 A.Y: 2012-13 LAXMI INDIA FINLEASECAP (P) LTD. 4 SUBMITTED BY THE ASSESSEE. SINCE THE ASSESSING OFFICER HAS ALREADY TAKEN A VIEW IN THE ASSESSEE`S CASE UNDER CONSIDERATION THEREFORE IT IS WORTHWHILE TO REMIT THE MATTER BACK TO THE FILE OF THE LD CIT(A), AS THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER THROUGH ITS VARIOUS GROUNDS RAISED BEFORE US. MOREOVER, THE LD CIT(A) HAS CO-TERMINOUS POWERS, THAT IS, LD CIT(A) HAS ALL THE POWERS AS THE ASSESSING OFFICER HAS, THEREFORE, THE ASSESSEE MAY PROVE HIS BONA FIDE BY SUBMITTING RELEVANT DOCUMENTS/ADDITIONAL EVIDENCES ETC. BEFORE THE FIRST APPELLATE AUTHORITY. HENCE, WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT(A). THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18/07/2018. SD/- (S. S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:18/07/2018 RS, SR.PS ITA NO.264/KOL/2017 A.Y: 2012-13 LAXMI INDIA FINLEASECAP (P) LTD. 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- LAXMI INDIA FINLEASECAP (P) LTD. 2. / THE RESPONDENT.- DCIT, CIRCLE-1(1), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .