Baksi Orthopaedies Trauma and Rehabilitation Centre Pvt. Ltd., Kolkata V. I.T.O.,Ward-10(1), Kolkata

ITA 290/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4038 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 19-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Right to appeal; Set aside

Judgement Text

1 ITA NO. 290/KOL/2019 BAKSI ORTHOPAEDICS TRAUMA & REHABILITATION CENTRE P. LTD. , AY- 2014-15 , SMC , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 290/KOL/2019 ASSESSMENT YEAR: 2014-15 BAKSI ORTHOPAEDICS TRAUMA & REHABILITATION CENTRE PVT. LTD. VS INCOME-TAX OFFICER, WD-10(1), KOLKATA APPLICANT RESPONDENT DATE OF HEARING 03.07.2019 DATE OF PRONOUNCEMENT 23.08.2019 FOR THE APPLICANT SHRI S. M. SURANA, ADVOCATE FOR THE RESPONDENT SHRI SANKAR HALDER, JCIT. SR. DR ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-4, KOLKATA DATED 28.12.2018 FOR AY 2014-15. 2. AT THE OUTSET ITSELF, THE LD. AR OF THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER EX PARTE WITHO UT GOING INTO MERITS OF THE CASE AND HAS PASSED THE EX PARTE ORDER AFTER ISSUING FIVE NO TICES DATED 05.09.2018, 05.10.2018, 15.11.2018, 26.11.2018 AND 17.12.2018. HE ALSO SUBM ITTED THAT DUE TO THE REASONS BEYOND ITS CONTROL THE ASSESSEE COULD NOT APPEAR BEFORE TH E LD. CIT(A). HOWEVER, IT WAS POINTED OUT TO ME THAT THE LD. CIT(A)S POWER IS COTERMINOU S AS THAT OF THE AO. THEREFORE, ACCORDING TO LD. AR, THE LD. CIT(A) BEING THE FIRST APPELLATE AUTHORITY IS EXPECTED TO CALL FOR RECORDS FROM THE AO AND DISPOSE OF THE APPEAL O N MERIT EVEN IF THE ASSESSEE DID NOT APPEAR BEFORE HIM. IN OTHER WORDS, ACCORDING TO LD . AR, THE LD. CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL FOR NON PROSECUTION. FURTHER, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT FOR THE INTEREST OF JUSTICE, AN OPPO RTUNITY MAY BE GIVEN TO THE ASSESSEE THEN IT WOULD BE ABLE TO PRESENT ITS CASE BEFORE THE LD. CI T(A). THE LD. DR VEHEMENTLY OPPOSING THE PLEA OF THE LD. AR, POINTED OUT THAT ASSESSEE D ESPITE NOTICES PURPOSELY FAILED TO APPEAR BEFORE THE LD. CIT(A) AND SO CANNOT TAKE ADVANTAGE OF ITS OWN OMISSIONS. 2 ITA NO. 290/KOL/2019 BAKSI ORTHOPAEDICS TRAUMA & REHABILITATION CENTRE P. LTD. , AY- 2014-15 3. AFTER HEARING THE RIVAL SUBMISSIONS, IT IS NOTED THAT THE LD. CIT(A) HAS CONFIRMED THE ACTION OF AO BY AN EX PARTE WHICH IS ALSO PER SE A CRYPTIC ORDER. HOWEVER, DURING THE HEARING BEFORE US, THE LD. AR UNDERTAKES THAT IF AN OPPORTUNITY IS AFFORDED, THE ASSESSEE IS READY TO DILIGENTLY APPEAR BEFORE THE LD. CIT(A). I N THE AFORESAID CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE MAY NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY. IT HAS TO BE K EPT IN MIND THAT ASSESSEES RIGHT TO APPEAL BEFORE LD. CIT(A) IS A STATUTORY RIGHT AND THE LD. CIT(A) IS BOUND BY LAW TO DISCHARGE THE APPELLATE JURISDICTION BY ADJUDICATING THE ISSUE BO TH IN RESPECT TO FACT AND LAW IN ACCORDANCE TO LAW. WHILE DISCHARGING THIS APPELLATE JURISDICT ION THE LD. CIT(A) SHOULD HEAR THE ASSESSEE/LD. AR OR CONSIDER THE WRITTEN SUBMISSION AND PAPER BOOK IF ANY BEFORE ADJUDICATING ON THE ISSUES OF FACTS/LAW/MIXED QUEST ION OF FACT AND LAW AND, THEREAFTER PASS THE APPELLATE ORDER WHICH SHOULD BE IDEALLY A SPEAK ING ORDER. AT THE SAME TIME, THE ASSESSEE SHOULD FURNISH THE CORRECT ADDRESS TO THE LD. CIT(A ) AND INTIMATE ANY CHANGE IN ADDRESS PROMPTLY, SO THAT NOTICE COULD BE SERVED UPON THE A SSESSEE AND MAKE ALL ENDEAVOUR TO APPEAR BEFORE THE LD. CIT(A) SO THAT APPELLATE PROCEEDINGS ARE MEANINGFUL AND FURNISH ALL DOCUMENTS BEFORE THE LD. CIT(A) SO THAT HE CAN ADJ UDICATE THE ISSUES BEFORE HIM. THE LD. CIT(A) CAN ALSO CALL FOR THE RECORDS FROM THE AO AN D THEREAFTER DECIDE THE APPEAL ON MERITS IF THE ASSESSEE DOES NOT TURN UP DURING THE APPELLA TE PROCEEDINGS DESPITE SERVICE OF NOTICE BY POST/ELECTRONICALLY. SINCE AN EX PARTE CRYPTIC O RDER HAS BEEN PASSED BY LD. CIT(A) WITHOUT GOING ON MERITS, I AM INCLINED TO SET ASIDE THE ORDER OF THE FIRST APPELLATE AUTHORITY AND REMAND THE MATTER BACK TO THE FILE OF LD. CIT(A ) TO ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE IS DIRECTED TO DILIGENTLY PARTICIPATE IN THE APPELLATE PROCEEDI NGS. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD AUGU ST, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED :23RD AUGUST, 2019 JD.(SR.P.S.) 3 ITA NO. 290/KOL/2019 BAKSI ORTHOPAEDICS TRAUMA & REHABILITATION CENTRE P. LTD. , AY- 2014-15 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT BAKSI ORTHOPAEDICS TRAUMA & REHABILI TATION CENTRE PVT. LTD., C/O, P. K. MATHUR, ADVOCATE, 1, MEREDITH STRE ET, 2 ND FLOOR, KOLKATA- 700 072. 2 RESPONDENT ITO, WARD-10(1), KOLKATA 3. 4. CIT(A)-4, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR