M/s. Durga Textiles, Kolkata V. ITO, Ward - 50(4), Kolkata, Kolkata

ITA 4/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2527 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2010
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Assessee Lawyers: M GHOSH
• Keywords: Opportunity of being heard; Principle of natural justice; Validity of assessment
• Section: 142(1)

Judgement Text

1 , C , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- C , KO LKATA [ . . . . . . . . , ,, , . .. . . .. . , , , , !' ] BEFORE SHRI B.R.MITTAL, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNTANT MEMBER # # # # / ITA NO. 04 (KOL) OF 2010 $%& '( / ASSESSMENT YEAR 2006-07 M/S. DURGA TEXTILES , KOLKATA. (PAN-AACFD0236D) INCOME-TAX OFFICER, WARD-50(4). KOLKATA.. (+, / APPELLANT ) - % - - VERSUS -. (/0+,/ RESPONDENT ) +, 1 2 !/ FOR THE APPELLANT: / SRI M. GHOSH /0+, 1 2 ! / FOR THE RESPONDENT: / SRI PIYUSH KOLHE !3 / ORDER ( . .. . . .. . ), !' (C.D. RAO), ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE OR DER DATED 31.08.2009 OF LD. C.I.T.(A)-XXXII, KOLKATA PERTAINING TO ASSESSMENT Y EAR 2006-07. 2. THE ASSESSEE FILED ITS RETURN DECLARING TOTAL I NCOME OF RS. 19,110/-. RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. THEREAFTER THE C ASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S. 143(2)/142(1) WERE ISSUED TO THE ASSES SEE. ACCORDING TO THE A.O., THE ASSESSEE DID NOT RESPOND TO THE SAID NOTICES. FROM THE CAUSE TITLE OF THE ASSESSMENT ORDER IT IS FOUND THAT DATE OF HEARING OF THE CASE WAS FIXED ON 07/12/2007. HOWEVER, THE A.O. COMPLETED THE BEST JUDGMENT ASSESSMENT U/S. 14 4 OF THE ACT DATED 29.12.2008 DETERMINING THE TOTAL INCOME FOR THE YEAR UNDER APP EAL AT RS.2,67,676/-, MAKING THEREBY SEVERAL DISALLOWANCES OF EXPENDITURE. 3. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. C. I.T.(A) CHALLENGING, INTER ALIA, VALIDITY OF ASSESSMENT ORDER PASSED U/S. 144 OF THE ACT AND ALSO DISALLOWANCES MADE IN THE ASSESSMENT. THE LD. C.I.T.(A) REJECTED ALL THE GROUNDS RAISED IN APPEAL BEFORE HIM, EXCEPT RESTRICTING THE DISALLOWANCE OF TELEPHONE EX PENSES TO 5% OF THE TOTAL EXPENDITURE UNDER THIS HEAD AND THUS ALLOWED THE APPEAL IN PART . 2 4. AT THE TIME OF HEARING BEFORE US, THE LD. A/R A PPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE A.O. HAS GIVEN ONLY ONE OPPORTUN ITY OF HEARING AND COMPLETED THE ASSESSMENT EX PARTE U/S. 144 OF THE ACT. THE LD. C.I.T.(A) FAILED TO C ONSIDER THAT THE ASSESSEE WAS NOT PROVIDED WITH REASONABLE OPPORTUNI TY AND, THEREFORE, HIS ORDER CONFIRMING AND/OR RESTRICTING THE DISALLOWANCES WER E UNJUSTIFIED. IN VIEW OF THE ABOVE, THE LD. A/R REQUESTED TO SET ASIDE THE ORDERS OF TH E AUTHORITIES BELOW TO EXPLAIN THE CASE OF THE ASSESSEE BEFORE THE A.O. THE LD. DEPARTMENT AL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE EVEN DID NOT RESPOND TO THE NOTICES ISSUED U/S. 143(2) & 142(1) OF THE ACT. THEREFORE, THE A.O. WAS JUSTIFIED IN MAKING HER BEST JUDGMENT ASSE SSMENT. HOWEVER, HE COULD NOT CONTROVERT THE SUBMISSION OF THE ASSESSEE THAT THE A.O. HAD ALLOWED ONLY ONE OPPORTUNITY BEFORE COMPLETING THE ASSESSMENT. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. AS STATED ABOVE, ONLY ONE OPPORTUNITY OF HEARING WAS PROVIDED TO THE ASSESSEE ON 07/11/2007. IN OUR CONSIDERED OPINION, THEREFORE, THE ASSESSEE WAS NOT GIVEN ADEQUATE OPPORTUNITY FOR EXPLAINING ITS CASE BEFORE COMPLETION OF ASSESSMENT . IN THAT VIEW OF THE MATTER AND KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, W E SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF A. O. THE A.O. IS DIRECTED TO MAKE THE ASSESSMENT IN QUESTION DE NOVO AFTER ALLOWING ADEQU ATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 4 !3 '5! 6 5% 7 48 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 30.06.2010. SD/- SD/- [B.R. MITTAL] [C.D. RAO] JUDICIAL MEMBER ACCOUNTANT MEMBE R ( (( ( ' ' ' ') )) ) DATE: 30-06-2010 3 # # # # / ITA NO. 04 (KOL) OF 2010 !3 1 /$$9 :!9';- COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT : M/S.DURGA TEXTILES, 242, DUM DUM RD, KOL-700 074. 2 /0+, / THE RESPONDENT : I.T.O., WARD-50(4), KOLKATA. 3. $3% () : THE CIT(A)-XXXII, KOLKATA. 4. $3%/ THE CIT, KOL- 4. @$7 /$% / DR, ITAT, KOLKATA BENCHES, KOLKATA 5. GUARD FILE . 09 /$/ TRUE COPY, !3%5/ BY ORDER, (DKP) B C / DEPUTY REGISTRAR .