Malda Construction Co., Malda V. A.C.I.T Cir - Malda, Malda

ITA 361/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99856 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NITOY BARAN SOM JCIT SRDR
• Assessee Lawyers: VARSHA JALAN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 361 / KOL / 2013 ASSESSMENT YEAR :2009-10 MALDA CONSTRUCTION CO. VVEKANANDA PALY, N.H. 34, MALDA [ PAN NO.AAEFM 5350 K ] V/S . ACIT, MALDA CIRCLE, 1 ST FLOOR, NETAJI MARKET, RATHBARI, MALDA, PIN 732 101 /APPELLANT .. / RESPONDENT /BY APPELLANT SMT. VARSHA JALAN, ADVOCATE /BY RESPONDENT SRI NITOY BARAN SOM, JCIT, SR-DR /DATE OF HEARING 10-09-2015 /DATE OF PRONOUNCEMENT 07-10-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI IN APPEAL NO.65/ML D/CIT(A)/LAL/11-12 DATED 09.11.2012. ASSESSMENT WAS FRAMED BY ACIT, CI RCLE, MALDA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 28.11.2011 FOR ASSESSMENT YEAR 2009-10. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS UNDER : 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) IS ARBITRARY, UNCALLED FOR AND HENCE BAD IN LAW. 2. A. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING T HE ADDITION OF RS.31,90,000/- MADE BY THE LD. A.O MERELY ON THE BA SIS OF THE DISCLOSURE MADE DURING THE SURVEY OPERATION UNDER U NDUE MENTAL ITA NO.361/KOL/2013 A.Y. 2009-10 MALDA CONSTN. CO. V. ACIT MLD CIR. PAGE 2 PRESSURE AND STRESS AND WITHOUT ANY REFERENCE OF AN Y SPECIFIC FINDINGS IN THE IMPOUNDED DOCUMENTS AND/OR IN THE REGULAR BO OKS OF ACCOUNTS. B. THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS.31,90,000/- IGNORING THE DECISIONS OF THE JURISDICTIONAL ITAT S TATING THAT NET PROFIT OF 4% IS SUFFICIENT IN CONTACT BUSINESS WHERE BOOKS OF ACCOUNTS ARE MAINTAINED. C. THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDI TION IGNORING THE INSTRUCTION NO. F NO. 286/2/2003. IT(INV IT) DATED 10 TH MARCH, 2003 ISSUED BY THE CBDT AGAINST MAKING THE ASSESSMENT ON THE BASIS OF THE DISCLOSURE OBTAINED DURING SURVEY OPERATIONS AND IG NORING THE MATERIALS AND EVIDENCES ON RECORD. D. THAT THE LD. CIT(A) ERRED IN MAKING AN EX-PARTE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY OF BEING HEARD AND THEREBY D ENYING NATURAL JUSTICE. 2. AT THE OUTSET IT WAS NOTICED THAT THE CIT(A) HAS PASSED AN EX-PARTE ORDER SUSTAINING THE ADDITION MADE BY THE LD. AO. I T WAS ALSO OBSERVED THAT THE CIT(A) HAS PROVIDED VARIOUS OPPORTUNITIES TO TH E ASSESSEE ON DIFFERENT DATES TO DEFEND THE CASE BUT NONE APPEARED ON BEHAL F OF THE ASSESSEE. HENCE THERE WAS NO OPTION AVAILABLE TO THE CIT(A) B UT TO PASS THE ORDER ON THE BASIS OF AVAILABLE MATERIAL ON RECORD. 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E TRIBUNAL. MISS VARSHA JALAN, LD AR APPEARED ON BEHALF OF THE ASSES SEE AND MR. NILOY BARAN SOM, LD. DR APPEARED ON BEHALF OF THE REVENUE. 4. AT THE TIME OF HEARING LD. AR HAS SUBMITTED THAT MR. PRADIP KUMAR BASAK, PARTNER OF THE ASSESSEE-FIRM WAS LOOKING AFT ER THE TAXATION MATTER OF THE FIRM. DURING THE TIME OF HEARING AT CIT(A) STAG E, MR. PRADIP KUMAR BASAK , PARTNER OF THE FIRM WAS NOT WELL. HE WAS SUFFERING FROM BIPOLAR AFFECTIVE DISORDER. THEREFORE HE COULD NOT ATTEND THE HEARING OF CIT(A). IN SUPPORT OF HIS CLAIM THE ASSESSEE HAS SUBMITTED DULY NOTARIZED AFFIDAVIT AND THE MEDICAL PRESCRIPTION. THE LD. AR ALSO PRAYED THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO ASSESSEE BEFORE THE LD. CIT(A) TO DEFEND T HE CASE OF THE ASSESSEE. ITA NO.361/KOL/2013 A.Y. 2009-10 MALDA CONSTN. CO. V. ACIT MLD CIR. PAGE 3 5. THE LD DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE AFORESAID S UBMISSION OF THE LD. AR, WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE WHICH PREVENTED THE ASSESSEE TO ATTEND THE HEARING BEFORE THE LD.CIT(A) TO DEFEND THE CASE. THEREFORE, WE, IN THE INTEREST OF JUSTICE AND FAIR PLAY RESTORE THE MATTER TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO ADJUDICATE THE MATTER AFRESH AS PER THE LAW. IT IS ALSO INSTRUCTED THE ASSESSEE TO ATTEND T HE HEARING PROCEEDINGS BEFORE THE CIT(A) SINCERELY. HENCE, APPEAL OF ASSES SEE IS ALLOWED FOR THE STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 07 /10/2015 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 07 /10/2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-MALDA CONSTN. CO. VIVEKANANDA PALLY, N .H. 34, MALDA 2. / RESPONDENT-ACIT,MALDA CIRCLE, 1 ST FL NETAJI MARKET, RATHBARI, MALDA, PIN 732101 3. * +, - - . / CONCERNED CIT MALDA 4. - - .- / CIT (A) JALPAIGURI 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,