Galsi Foreign Liquor Off Shop, Burdwan V. I.T.O.,Ward-1(4), Kolkata

ITA 277/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8466 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-07-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PALASH CHATTAPADHYAY
• Keywords: Opportunity of being heard; Set aside
• Section: 40A(3); 143(3); 250

Judgement Text

ITA NO. 277/KOL/2020 ASS ESSMENT YEAR: 2009-2010 GA LSI FOREIGN LIQUOR OFF SHOP 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 277/KOL/2020 ASSESSMENT YEAR: 2009-2010 GALSI FOREIGN LIQUOR OFF SHOP,..................... ............................APPELLANT GALSI, G.T. ROAD, BURDWAN-713406, WEST BENGAL [PAN: AAFFG3055N] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-1(4), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN-713101 APPEARANCES BY: SHRI PALASH CHATTAPADHYAY, A.R., FOR THE APPELLANT SHRI JAYANTA KHANRA, JCIT, SR. D.R., FOR THE RESPON DEN T DATE OF CONCLUDING THE HEARING : JULY 09, 2020 DATE OF PRONOUNCING THE ORDER : JULY 09, 2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN DATED 17.07.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 139 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS MOVED AN APPLICATION SEEKI NG CONDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN TH EREIN, WHICH ARE DULY SUPPORTED BY AN AFFIDAVIT FILED BY THE ASSESSEE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE ASSESSEE IN FILING ITA NO. 277/KOL/2020 ASS ESSMENT YEAR: 2009-2010 GA LSI FOREIGN LIQUOR OFF SHOP 2 THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS ACCORDI NGLY CONDONED AND THE APPEAL OF THE ASSESSEE IS BEING DISPOSED OF ON MERI T. 3. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON ON 24.09.2009 DECLARING TOTAL INCOME OF RS.1,34,426/-. IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 17.11.2011 , THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICE R AT RS.11,56,104/- AFTER MAKING A DISALLOWANCE OF RS.10,21,678/- UNDER SECTION 40A(3) OF THE INCOME TAX ACT, 1961. 4. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U NDER SECTION 40A(3) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORD ER DATED 17.07.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. AUTHORIZED REPRESENTATIV E OF THE ASSESSEE, WHO WAS ASSIGNED TO REPRESENT THE SAME BEFORE THE LD. C IT(APPEALS) DID NOT APPEAR AT THE TIME OF HEARING FIXED BEFORE THE LD. CIT(APPEALS) AND EVEN DID NOT INFORM THE ASSESESE ABOUT THE SAME AT THE R ELEVANT TIME. KEEPING IN VIEW THE SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) WHEN ITS APPEA L WAS FIXED FOR ITA NO. 277/KOL/2020 ASS ESSMENT YEAR: 2009-2010 GA LSI FOREIGN LIQUOR OFF SHOP 3 HEARING. MOREOVER, THE LD. CIT(APPEALS) AS PER THE PROVISIONS OF SUB- SECTION (6) OF SECTION 250 WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINT S FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED IN THE SAID APPEAL DOES NOT CO MPLY WITH THE MANDATORY REQUIREMENTS OF SUB-SECTION (6) OF SECTIO N 250 AND EVEN THE LD. D.R. HAS NOT BEEN ABLE TO DISPUTE THIS POSITION . I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) E X-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE ONE M ORE OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LD. COUNSEL FOR T HE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. C IT(APPEALS) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENA BLE THE LD. CIT(APPEALS) TO DISPOSE OF THE APPEAL AFRESH EXPEDI TIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 09, 2020 . SD/- (P.M. JAGTAP) VICE-PRESIDENT) KOLKATA, THE 9 TH DAY OF JULY, 2020 COPIES TO : (1) GALSI FOREIGN LIQUOR OFF SHOP, GALSI, G.T. ROAD, BURDWAN-713406, WEST BENGAL (2) INCOME TAX OFFICER, WARD-1(4), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN-713101 (3) COMMISSIONER OF INCOME TAX (APPEALS), BUR DWAN; ITA NO. 277/KOL/2020 ASS ESSMENT YEAR: 2009-2010 GA LSI FOREIGN LIQUOR OFF SHOP 4 (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.