Akhtar Hossain, Kolkata V. ITO, WD-32(4), KOLKATA, Kolkata

ITA 398/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1273 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHWNGTHU
• Keywords: Application of stay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE HONBLE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER S.A.NO.98/KOL/2017 (A/O ITA NO.398/KOL/2016) ASSESSMENT YEAR : 2011-12 AKHTAR HOSSAIN 10/1C, JANNAGAR ROAD, P.O.PARK CIRCUS, P.S.BENIAPUKUR, KOLKATA-700017. PAN:ADCPH 4082 J V/S . I.T.O., WARD-32(4) 10, MIDDLETON ROW, KOLKATA-700015. /APPELLANT .. / RESPONDENT I.T.A. NO.398/KOL/201 6 ASSESSMENT YEAR : 2011-12 AKHTAR HOSSAIN 10/1C, JANNAGAR ROAD, P.O.PARK CIRCUS, P.S.BENIAPUKUR, KOLKATA-700017. PAN:ADCPH 4082 J V/S . I.T.O., WARD-32(4) 10, MIDDLETON ROW, KOLKATA-700015. /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI ANIL KOCHAR, ADVOCATE /BY RESPONDENT SHRI DAVID Z.CHWNGTHU, ADDL. CIT.DR /DATE OF HEARING 06.10.2017. /DATE OF PRONOUNCEMENT 11.10.2017 / O R D E R PER WASEEM AHMED, AM BY WAY OF THIS STAY PETITION THE ASSESSEE HAS REQUE STED FOR A STAY OF RECOVERY OF DEMAND FOR RS. 1,34,90,920/- ONLY. 2 2. AT THE OUTSET, IT WAS OBSERVED THE LD. CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE ON THE GROUND THAT THE ASSESSEE F AILED TO APPEAR ON THE DATE OF THE HEARING DESPITE THE FACT THAT NOTICES FOR HE ARING WERE SERVED UPON THE ASSESSEE. 3. THE LD. AR BEFORE US SUBMITTED THAT THE ADJOURNM ENT PETITION WAS FILED BEFORE THE LD. CIT(A) VIDE APPLICATION DATED 11.01. 2016 BUT THE LD. CIT-A FAILED TO CONSIDER THE SAME AND CONFIRMED THE ORDER OF AO VID E ORDER DATED 14-01-2016. THE LD. AR BEFORE US PRAYED TO RESTORE THE MATTER T O THE FILE OF THE LD. CIT(A) AND CONSENTED FOR THE REJECTION OF STAY PETITION. 4. ON THE OTHER HAND, THE LD. DR DID NOT RAISE ANY OBJECTION IF THE MATTER IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR FRE SH ADJUDICATION IN ACCORDANCE WITH LAW AND STAY PETITION GETS REJECTED. 5. AT THE THRESHOLD, WE FIND THAT BOTH THE PARTIES BEFORE US AGREED FOR THE REJECTION OF STAY PETITION AND CONSENTED TO ARGUE T HE MATTER/APPEAL ON MERIT. IN VIEW OF THIS WE REJECT THE STAY PETITION AND PROCEE D TO HEAR THE APPEAL ON MERITS. 6. IN THE RESULT, ASSESSEES STAY APPLICATION IS DI SMISSED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE FIND THAT THE LD. CIT( A) HAS FIXED THE CASE FOR HEARING ON SEVERAL OCCASIONS. BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE. THEREFORE, THE APPEAL WAS DECIDED EX-PARTE. HOWEVER, FROM THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE WE FIND THAT AN ADJOURNMENT PETITION W AS FILED VIDE DATED 11.01.2016 WHICH HAS NOT BEEN CONSIDERED BY THE LD. CIT(A). AS SUCH WE FIND THAT THE IMPUGNED ORDER OF THE LD. CIT(A) HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE. 8. THE PROVISION OF SECTION 250(6) OF THE ACT REQUI RES THE COMMISSIONER TO DISPOSE OFF THE GROUNDS RAISED BY THE ASSESSEE IN T HE APPEAL IN WRITING. BUT WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT THE ISSU E RAISED BY THE ASSESSEE HAVE 3 NOT BEEN DECIDED ON MERIT. IN OUR CONSIDERED VIEW A ND IN THE INTEREST OF JUSTICE AND FAIR PLAY WE FEEL THAT THE LD. CIT(A) SHOULD HA VE GIVEN ANOTHER OPPORTUNITY TO THE ASSESSEE TO APPEAR BEFORE HIM TO EXPLAIN HIS PO INT OF CONTENTIONS. THEREFORE IN THIS VIEW OF MATTER WE ARE INCLINED TO REMIT THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY TH E ASSESSEE ON MERIT IN ACCORDANCE WITH LAW. IT IS NEEDLESS TO MENTION THAT THE ASSESSEE SHOULD COOPERATE IN THE APPELLATE PROCEEDINGS AS AND WHEN THE MATTER IS FIXED FOR HEARING. HENCE, THE STAY APPLICATION OF THE ASSESSE E STANDS REJECTED AND THE GROUNDS OF ASSESSEES APPEAL STAND ALLOWED FOR STAT ISTICAL PURPOSES. 9. IN COMBINE RESULT, STAY APPLICATION OF ASSESSEE STA NDS DISMISSED AND THAT OF ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11/10/2017 SD/- SD/- ( ') ( ') (S.S.VISWANETHRA RAVI) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) *RG.SPS $- 11/10 //201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-AKHTAR HOSSAIN, 10/1C, JANNAGAR ROAD, PA RK CIRCUS, KOLKATA-17 2. /RESPONDENT- ITO WARD-32(4), 10,MIDDLETON ROW, KOLK ATA-15 3. / 2 / CONCERNED CIT 4. 2- / CIT (A) 5. 5 /, /, KOLKATA / DR, ITAT, KOLKATA 6. ; / GUARD FILE. BY ORDER/ , / /,