Shree Balaji Coal Traders Ltd., , Kolkata V. Pr.CIT, Central - 1, Kolkata , Kolkata

ITA 279/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4226 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 16-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 263

Judgement Text

1 ITA NO. 279/KOL/2018 SHREE BALAJI COAL TRADERS LTD., AY 2013-14 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 279/KOL/2018 ASSESSMENT YEAR: 2013-14 SHREE BALAJI COAL TRADERS LTD. (PAN: AAHCS6005R) VS. PR. COMMISSIONER OF INCOME-TAX, CENTRAL-1, KOLKATA APPELLANT RESPONDENT DATE OF HEARING 24.01.2019 DATE OF PRONOUNCEMENT 13.03.2019 FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT SHRI SHANKAR HALDER, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E REVISION ORDER OF THE LD. PR. CIT- 1, KOLKATA PASSED U/S. 263 OF THE INCOME-TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 28.02.2017 FOR AY 2013-14. 2. AT THE OUTSET ITSELF, IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. COUNSEL FOR THE ASSESSEE THAT BY RAISING GROUND NO.1, THE ASSESSEE HAS ASSAILED THE DECISION OF THE LD. PR. CIT PASSED U/S. 263 OF THE ACT THAT IT HAS NOT BEEN GIVEN PROPER OPPORTUNITY OF HEARING BEFORE THE IMPUGNED ORDER WAS PASSED. 3. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENT ION TO THE IMPUGNED ORDER WHEREIN WE NOTE THAT THE LD. PR. CIT HAD ISSUED NOTICE U/S. 263 OF THE ACT ON 22.11.2016 AND ON THE DATE OF HEARING THE ASSESSEE HAD SOUGHT ADJOURNMENT AND THEREAFTER THE MATTER WAS RE-FIXED FOR HEARING ON 17.01.2017 AND SINCE NONE APPEARED, THE MATTER WAS AGAIN FIXED FOR HEARING ON 08.02.2017. BUT SINCE NONE APPEARED ON THAT DAT E, THE LD. PR. CIT HAS PASSED THE EX PARTE ORDER AGAINST THE ASSESSEE. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE DID NOT GET AN OPPORTUNITY OF BEING HE ARD BECAUSE THE SECOND AND THE THIRD 2 ITA NO. 279/KOL/2018 SHREE BALAJI COAL TRADERS LTD., AY 2013-14 NOTICE WHICH THE LD. PR. CIT NOTES IN THE IMPUGNED ORDER HAS NOT BEEN RECEIVED BY THE ASSESSEE. FOR SUBSTANTIATING THE AFORESAID FACT, T HE LD. COUNSEL DREW OUR ATTENTION TO THE AFFIDAVIT FILED BY THE DIRECTOR OF THE ASSESSEE COM PANY WHICH HAS BEEN FOUND TO HAVE BEEN NOTARIZED AND PLACED BEFORE US WHEREIN THE CONTENTS OF THE AFFIDAVIT SUPPORT THE AFORESAID CLAIM/CONTENTION MADE BY THE LD. AR. IT HAS TO BE KEPT IN MIND THAT WHILE EXERCISING THE REVISIONAL JURISDICTION U/S. 263 OF THE ACT THOUGH NOTICE AS SUCH IS NOT REQUIRED TO BE ISSUED BY CIT, BUT OPPORTUNITY OF HEARING IS SINE QUA NON BEFORE PASSING THE ORDER. IF OPPORTUNITY OF HEARING IS NOT GIVEN THEN THE ORDER IS FRAGILE F OR VIOLATION OF NATURAL JUSTICE. IN THIS CASE, BY AN AFFIDAVIT THE DIRECTOR OF THE ASSESSEE COMPAN Y HAS PLEADED THAT THEY WERE UNAWARE OF THE HEARING FIXED FOR THE SECOND AND THIRD NOTICE A S MENTIONED TO THE LD. CIT IN THE IMPUGNED ORDER. SINCE IT DID NOT RECEIVE THE NOTIC E AND BECAUSE IT WAS UNAWARE OF THE HEARING FIXED BEFORE PR CIT, IT COULD NOT PARTICIPA TE IN THE HEARING WHICH MEANS THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD THUS VI OLATING THE PRINCIPLES OF NATURAL JUSTICE. SO, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE SE T ASIDE THE ORDER OF THE LD. PR. CIT AND REMAND THE MATTER BACK TO THE FILE OF THE LD. PR. C IT TO GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS ORDER IN ACCORDANCE TO LAW DE NOVO. THEREFORE, THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. SINCE WE ARE REMITTING THE MATTER BACK TO PR. CI T, OTHER GROUND OF APPEAL DOES NOT REQUIRE ANY ADJUDICATION HENCE, THE SAME ARE NOT AD JUDICATED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13TH MARC H, 2019. SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13TH MARCH, 2019 JD.(SR.P.S.) 3 ITA NO. 279/KOL/2018 SHREE BALAJI COAL TRADERS LTD., AY 2013-14 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SHREE BALAJI COAL TRADERS LTD., C/O, D. J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020. 2 RESPONDENT PR. CIT, CENTRAL-1, KOLKATA 3 4 D CIT, CENTRAL CIRCLE-2(2), KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR