Tradeswift Broking Pvt. Ltd., Jaipur V. ITO, Ward 2(2), Jaipur, Jaipur

ITA 301/KOL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1610 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RABIN CHAWDHURY
• Assessee Lawyers: SAUMITRA CHOUDHURY
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.301/KOL/2017 ( / ASSESSMENT YEAR : 2009-10 TRADESWIFT BROKING PVT. LTD. BAID HOUSE, 4 TH FLOOR, 1, TARA NAGAR, AJMER ROAD, JAIPUR- 302006, RAJASTHAN. VS. ITO-4(3), KOLKATA ./ ./PAN/GIR NO. : AAECA 3760 A ( /ASSESSEE ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SAUMITRA CHOUDHURY, ADV. /REVENUE BY : SHRI RABIN CHAWDHURY, ADDL. CIT / DATE OF HEARING : 15/06/2017 !'# /DATE OF PRONOUNCEMENT: 07/ 07/2017 / O R D E R PER DR.ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST THE O RDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-2, KOLKATA IN A PPEAL NO. 211/CIT(A)-2/2014-15 DATED 31.03.2016 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE AO U/S 144 OF THE INCOME TAX AC T 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 27.12.2011. 2. BRIEF FACTS QUA THE ASSESSEE ARE THAT THE ASSESS EE FILED ITS RETURN OF INCOMEFOR ASSESSMENT YEAR 2009-10 ON 30.09.2009SHOW ING TOTAL INCOME OF 6,09,360/-. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY U/S 143(2) OF ITA NO.301/17 TRADESWIFT BROKING PVT. LTD. 2 THE ACT AND THE ASSESSING OFFICER COMPLETED THE ASS ESSMENT BY MAKING ADDITION BASED ON ESTIMATE ON ACCOUNT OF VARIOUS EX PENSES. 3. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (AP PEAL), WHO HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. THE LD. CIT(A) ISSUED NOTICE DATED 04.10.2012 FOR FIXING THE CASE FOR HEARING ON 29.11.2012 BUT ASSESSEE DID NOT APPEAR BEFORE HIM. THE LD. CIT(A) FURTHERISSUED THE NOTICES DATED 12.12.2013, 11.12.2 015 AND 09.03.2016, BUT NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESE NTATIVE APPEARED BEFORE HIM. THEREFORE, THE LD. CIT(A) PASSED THE EX PARTE ORDER. 4. AGAINST THE SAID EX PARTE ORDER OF THE LD. CIT(A ), THE ASSESSEE IS IN APPEAL BEFORE US AND PRAYED TO THE BENCH TO SEND TH E MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO MAKE ASSESSMENT AF RESH. THE LD. COUNSEL STATED BEFORE US THAT THE JURISDICTION OF THE ASSES SEE WAS TRANSFERRED TO ITO WARD-2(2), JAIPUR FROM ITO WARD-4(3), KOLKATA U /S 127(2) OF THE INCOME TAX ACT, ON 02.02.2012 THEREFORE, THE ORDER PASSED BY THE LD. CIT(A) IS WITHOUT JURISDICTION. FURTHER, THE LD. CO UNSEL STATED THAT THE ORDER PASSED BY THE LD. CIT(A) IS WITHOUT GIVING AN Y REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN ADDI TION TO THIS, IN CASE OF EX PARTE ASSESSMENT, THE LD. CIT(A) SHOULD HAVE CON SIDERED THE MERIT OF THE CASE AND THE MATERIAL AVAILABLE BEFORE HIM TO A DJUDICATE THE ISSUE BUT IN FACT THE LD. CIT(A) DID NOT CONSIDER THE SAME. 5. ON THE OTHER HAND, LD DR FOR THE REVENUE HAS PRI MARILY REITERATED THE STAND TAKEN BY THE LD CIT(A), WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BRE VITY. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES AFRESH EXAMINATION AT THE END OF THE LD. ASSESSING OFFICER. THEREFORE, WE REMIT THE MATTER BACK TO THE FILE OF THE LD. AO TO MAKE THE ASSESSMENT AF RESH AFTER GIVING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ACCORDINGLY, WE ALLOW THIS APPEAL FOR STATISTICAL PURPOSES. ITA NO.301/17 TRADESWIFT BROKING PVT. LTD. 3 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE , IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07/ 07/2017. SD/ - (A.T. VARKEY) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 07/ 07/2017. SB , SR.PS. / COPY OF THE ORDER FORWARDED TO : SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, I.T.A.T., KOLKATA BENCHES, KOLKATA 1. / THE ASSESSEE- TRADESWIFT BROKING PVT. LTD. 2. / THE RESPONDENT.- ITO, WARD-4(3), KOLKATA 3. ( ( ) / THE CIT(A), :KOLKATA. 4. ( / CIT 5. )* +, , ,# , / DR, ITAT, KOLKATA 6. + -. / GUARD FILE. ) //TRUE COPY// BY ORDER