Dristi Financial Consultancy Services Pvt. Ltd., Bilwara V. ITO, Wd-6(1), Kolkata, Kolkata

ITA 384/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6435 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 24-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING CIT LD
• Assessee Lawyers: SUBASH AGARWAL LD
• Keywords: Principle of natural justice
• Section: 68; 148; 263

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWA NETHRA RAVI, JM ITA NO. 384/KOL /2017 A.Y : 2009-10 DRISTI FINANCIAL CONSULTANCY VS. INCOME TAX OFFICE R SERVICES PVT. LTD. WARD 6(1), KOLKATA PAN: AADCD 0826D [ APPELLANT ] [ RESPONDENT ] APPELLANT BY : SHRI SUBASH AGARWAL, ADVO CATE, LD.AR RESPONDENT BY : SHRI G. HANGSHING, CIT, L D.DR DATE OF HEARING : 20-03-2018 DATE OF PRONOUNCEMENT : 0 2-05-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DT . 01-09-2016 OF THE CIT-A, 2, KOLKATA FOR THE A.Y 2009-10. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN PASSING EX PARTE ORDER IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. 3. THE LD. AR SUBMITS THAT INITIALLY RETURN OF INCO ME WAS PROCESSED U/S. 143(1) OF THE ACT. THE SAID ASSESSMENT WAS RE-OPENE D BY ISSUING OF NOTICE U/S. 148 OF THE ACT. THE AO DETERMINED THE TOTAL IN COME OF ASSESSEE AT RS.28,360/- VIDE HIS ORDER PASSED U/S. 147/143(3) D T. 29-03-2012. 4. THE CIT, KOLKATA-II HELD THAT THE SAID ASSESSMEN T DT. 29-3-2012 IS ERRONEOUS AND PRE-JUDICIAL TO THE INTEREST OF REVEN UE AND AS SUCH DIRECTED THE AO TO CONDUCT FRESH ASSESSMENT VIDE HER ORDER PASSED U/S. 263 OF THE ACT DT. 25-03-2014. IN THE GIVING EFFECT PROCEEDIN GS, THE AO WITHOUT SERVING ANY NOTICE ON ASSESSEE ADDED AN AMOUNT OF R S.6,12,00,000/- TO THE TOTAL INCOME OF ASSESSEE ON ACCOUNT OF CASH CRE DIT U/S. 68 OF THE ACT BY AN ORDER PASSED U/S.144/263/147(143(3) OF THE AC T DT. 10-03-2015. ITA NO.384/KOL/2017 2 5. THE ABOVE ORDER OF THE AO WAS CHALLENGED BEFORE THE CIT-A. THE CIT-A ISSUED NOTICES FOR THE HEARINGS ON 30-08-2016 , 21-07-2016 & 04- 05-2016 AND THE NOTICES WERE RETURNED WITH THE POST AL REMARKS- INSUFFICIENT ADDRESS. IT IS NOTICED THAT THE CIT-A ISSUED NOTICES TO THE ADDRESS MENTIONED IN FORM NO. 35, 7A BENTINCK STREE T, 4 TH FLOOR, KOLKATA- 700 001 INSTEAD OF B-224, MAHESH MARG, SANJAY COLON Y, BILWARA-311001, RAJASTHAN. SINCE THERE WAS NO REPRESENTATION ON BEH ALF OF ASSESSEE, THE CIT-A PASSED EX PARTE AND CONFIRMED THE SAID ORDER OF THE AO. 6. THE LD.AR SUBMITS THAT THERE WAS NO REPRESENTATI ON EITHER BEFORE THE AO & CIT-A DUE TO THE SAID FACT THAT NOTICES WE RE ISSUED TO KOLKATA ADDRESS, BUT NOT IN RAJASTHAN ADDRESS MENTIONED IN FORM NO. 36 COLUMN 10. 7. ON THE OTHER HAND, THE LD. DR DID NOT CONTROVERT THE SAME. 8. HEARD RIVAL SUBMISSIONS & PERUSED THE RECORD. IT IS NOTICED THAT THE CIT-A ISSUED NOTICES TO ASSESSEE ON 11-08-2016, 09- 05-2016 & 08-04- 2016 FIXING THE HEARINGS ON 30-08-2016, 21-07-2016 & 04-05-2016. BUT, THE NOTICES DT. 11-08-2016 & 08-04-2016 WERE RETURN ED UNSERVED WITH AN ENDORSEMENT INSUFFICIENT ADDRESS. ON THE DATE OF HE ARING 21-07-2016 NON APPEARED NOR ANY ADJOURNMENT WAS FILED. ON PERUSAL OF ASSESSMENT ORDER, WE FIND THAT THE ASSISTANCE OF ASSESSEE IS REQUIRED TO SUBSTANTIATE ITS CLAIM AND CONTENTION. IN SUCH CIRCUMSTANCES, TAKING INTO CONSIDERATION THE SUBMISSIONS OF LD.AR AND IN THE INTEREST OF NATURAL JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER INVOLVED IN THE APP EAL TO THE FILE OF CIT- A FOR HIS FRESH ADJUDICATION AND TO PASS A FRESH OR DER AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING H EARD TO ASSESSEE. THE ASSESSEE IS DIRECTED NOT TO SEEK ANY ADJOURNMENT AN D TO CO-OPERATE WITH THE CIT-A IN THE FIRST APPELLATE PROCEEDINGS FOR S PEEDY DISPOSAL OF THE ITA NO.384/KOL/2017 3 CASE. THEREFORE, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE-ITA NO.384 /KOL/2017 FOR THE A.Y 2009-10 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 - 05-2018 SD/- SD/- WASEEM AHMED S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 02-05-2018 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT/ASSESSEE: M/S. DRISTI FINANCIAL CONSULTAN CY SERVICES PVT. LTD, LOKESH KUMAR DAK, B-224, MAHESH MARG, SANJAY COLONY, BILWARA-311001. 2 RESPONDENT/ASSESSEE: INCOME TAX OFFICER, WARD 6(1), KOLKATA, AAYKAR BHAWAN, KOLKATA-700 069. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER, SR.PS, H.O.O ITAT,KOL