Visheshwar Nath (HUF), Kolkata V. ITO, Ward 32(2), Kolkata, Kolkata

ITA 303/KOL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1607 (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: 2010-2011
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARYA
• Assessee Lawyers: SANJIB BARBORA
• Keywords: Principle of natural justice
• Section: 147; 148; 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.303/KOL/2017 ( / ASSESSMENT YEAR : 2010-11 VISHESHWAR NATH (HUF) 21, CAMAC STREET, KOLKATA-700071. VS. ITO, WARD 32(2), 10B, MIDDLETON ROW, KOLKATA- 700071 ./ ./PAN/GIR NO. : AABHV 9742 B ( /ASSESSEE ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SANJIB BARBORA, FCA /REVENUE BY : SHRI ARINDAM BHATTACHARYA, ADDL. CIT SR. DR. / DATE OF HEARING : 16/06/2017 !'# /DATE OF PRONOUNCEMENT : 07/ 07/2017 / O R D E R PER DR.ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST THE O RDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-9, KOLK ATA IN APPEAL NO. 466/CIT(A)-9/WD-32(2)/2014-15/KOL, DATED 30.03. 2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER U/S 144 READ WITH SECTION 147 OF THE INCOME TAX ACT 1961, ( HEREINAFTER REFERRED TO AS THE ACT), DATED 11.03.2014. ITA NO.303/17 VISHESHWARNATH (HUF) 2 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T IN THE INSTANT CASE, THE ASSESSMENT PROCEEDINGS WERE REOPENED BY I SSUING NOTICES U/S 148 OF THE I.T. ACT, 1961 DATED 28.03.2 013 AFTER RECORDING THE PROPER REASONS. DURING THE REASSESSME NT PROCEEDINGS NONE APPEARED BEFORE THE LD.AO,THEREFORE, THE LD. A O HAS PASSED THE EX PARTE ORDER BY MAKING VARIOUS ADDITIONS U/S 144 OF THE ACT. 3. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-T AX (APPEALS) WHO HAS DISMISSED THE APPEAL OF THE ASSESSEE, BECAU SE NOBODY APPEARED BEFORE HIM I.E. DURING THE APPELLATE PROCE EDINGS NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE ATTE NDED THE OFFICE OF THE LD. CIT(A). ALTHOUGH, THE LD. CIT(A) ISSUED SEV ERAL NOTICES FOR HEARING DATED, 16.03.2015, 26.06.2015, 30.07.2015, 13.08.2015, 28.10.2015, 16.12.2015, 22.01.2016 AND 10.03.2016. THERE WAS NO COMPLIANCE OF THESE NOTICES, ON THE PART OF THE ASS ESSEE, THEREFORE, THE LD. CIT(A) CONFIRMED THE ORDER PASSED BY THE AS SESSING OFFICER. 4. NOT BEING SATISFIED WITH THE ORDER OF THE LD. CI T(A), THE ASSESSEE IS AN APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. LD. CIT(A) ERRED IN PASSING AN EX PARTE ORDER W ITHOUT GRANTING AN OPPORTUNITY OF HEARING. EVEN THE NOTIC E OF HEARING WAS NOT SERVED. DESPITE THAT AN EX PARTE ORDER HAS BEEN PASSED CONFIRMING THE A.O.S ACTION. THEREFORE, THE LD. CI T(A)S ORDER MAY BE SET ASIDE. 2. WITHOUT PREJUDICE TO THE GROUND ABOVE THE LD. C IT(A) HAS NOT DEALT WITH THE GROUNDS OF APPEAL BEFORE HIM AND ERRED IN PASSING AN EX PARTE ORDER WHICH IS NOT ON MERITS. ITA NO.303/17 VISHESHWARNATH (HUF) 3 5. THE LD. COUNSEL FOR THEASSESSEE HAS SUBMITTED T HAT THE ASSESSEE UNDER CONSIDERATION IS VISHESHWARNATH (HUF ) AND THE KARTA OF THIS HUF, SHRI VISHESHWARNATH HAD DIED ON 7 TH JULY, 2010. THE ASSESSEE HAS PRODUCED DEATH CERTIFICATE. AFTER THE DEATH OF THE KARTA OF HUF THERE WERE LEGAL FIGHTING AMONG THE CO -PARCENERS I.E., THE MEMBERS OF THE HUF WERE FIGHTING ABOUT THE FAM ILY MATTERS THEREFORE, NOBODY COULD ATTEND BEFORE THE LD. ASSES SING OFFICER AND BEFORE THE LD. CIT(A). ON 26.07.2014 THE SUCCESSOR OF VISHESHWARNATH (HUF), MR. VIRENDRANATH WROTE A LET TER TO THE ASSESSING OFFICER TO PROVIDE HIM CERTIFIED COPY OF THE ASSESSMENT ORDER, AND AFTER GETTING THE CERTIFIED COPY OF THE ASSESSMENT ORDER THE SUCCESSOR OF THE ASSESSEE CAME TO KNOW ABOUT TH E ADDITIONS MADE BY THE ASSESSING OFFICER. THE LD. COUNSEL, THE REFORE, PRAYED THE BENCH TO REMIT THE CASE BACK TO THE FILE OF THE ASSESSING OFFICER, IN ORDER TO MAKE THE FRESH ASSESSMENT. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE D ID NOT OBJECT THE PROPOSITION CANVASSED BY THE LD. COUNSEL FOR THE AS SESSEE ABOUT SENDING BACK THE SAIDMATTER TO THE FILE OF THE ASS ESSING OFFICER TO MAKE THE FRESH ASSESSMENT. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTICE THAT IN THE INTEREST OF NATURAL JUSTICE, THIS ISSUE REQUIRES A FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER, AS THE LD. COUNSEL FOR THE ASSESSEE HAS E XPLAINED BEFORE US THAT BECAUSE OF DEATH OF KARTA OF HUF,THERE WAS FIGHTING AMONG THE MEMBERS OF THE HUF FAMILY AND THEREFORE, THE AS SESSEE NEITHER ATTENDED THE OFFICE OF THE ASSESSING OFFICER NOR TH E OFFICE OF THE LD. CIT(A). WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFOR E THE ASSESSING OFFICER ON 31.07.2017 AND SUBMIT THE NECESSARY DETA ILS AS REQUIRED ITA NO.303/17 VISHESHWARNATH (HUF) 4 BY THE AO. THIS IS TO ENSURE THAT THE ASSESSEE SHOU LD PARTICIPATE IN THE ASSESSMENT PROCEEDINGS. WE ALLOW THIS APPEAL FO R STATISTICAL PURPOSES. 8. 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- VISHESHWAR NATH (HUF) 2. / THE RESPONDENT.- ITO WARD 32(2), KOLKATA 3. ( ( ) / THE CIT(A), :KOLKATA 4. ( / CIT 5. )* +, , ,# , / DR, ITAT, KOLKATA 6. + -. / GUARD FILE. ) //TRUE COPY// BY ORDER