M/s. Yogendra International , Kolkata V. ITO, Ward - 45(4), Kolkata , Kolkata

ITA 419/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8733 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S HALDER
• Assessee Lawyers: A BARNWAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 143(3)

Judgement Text

ITA NO. 419/KOL/2018 A.Y. 2012-2013 M/S. YOGENDRA INTERNATIONAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 419/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. YOGENDRA INTERNATIONAL,....................... ......................APPELLANT 4, NARAYAN PRASAD BABU LANE, KOLKATA-700 007 [PAN: AAAFY 2407 R] -VS.- INCOME TAX OFFICER,................................ .................................RESPONDENT WARD-45(4), KOLKATA, 3, GOVERNMENT PLACE WEST, KOLKATA-700 001 APPEARANCES BY: SHRI A. BARNWAL, FCA, FOR THE APPELLANT SHRI S. HALDER, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : DECEMBER 20, 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 20, 2018 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA DA TED 17.01.2018 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY OF RS.79,401/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN O RDER DATED 23.03.2015, THE TOTAL INCOME OF THE ASSESSEE WAS DE TERMINED BY THE ASSESSING OFFICER AT RS.10,32,640/- AS AGAINST THE INCOME OF RS.7,75,675/- ITA NO. 419/KOL/2018 A.Y. 2012-2013 M/S. YOGENDRA INTERNATIONAL 2 DECLARED IN THE RETURN OF INCOME AFTER MAKING CERTA IN ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF DISALLOW ANCE OF VARIOUS EXPENSES. PENALTY PROCEEDINGS UNDER SECTION 271(1)( C) WERE ALSO INITIATED BY THE ASSESSING OFFICER AND SINCE THE EX PLANATION OFFERED BY THE ASSESSEE IN SUPPORT OF THE SHOW-CAUSE NOTICE ISSUED DURING THE COURSE OF THE SAID PROCEEDINGS WAS NOT FOUND ACCEPTABLE BY HI M, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.79,401/- UNDER SECTIO N 271(1)(C) OF THE ACT BEING 100% OF THE TAX SOUGHT TO BE EVADED BY THE AS SESSEE. THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271( 1)(C) WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SIN CE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTIC ES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARINGS FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPEL LATE ORDER DATED 17.01.2018 PASSED EX-PATE THEREBY CONFIRMING THE PE NALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C). AGGRIEVE D BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS A PPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE NOTICES OF HEARINGS FIXED BY THE LD. CIT(APPEALS) WERE NEVER RECEIVED BY THE ASSESSEE AND NONE, THERE FORE, COULD APPEAR ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) ON SAID DATES OF HEARINGS. KEEPING IN VIEW THIS REASON GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS A SUFFICI ENT CAUSE FOR THE NON- APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(APPEA LS). EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. WE, TH EREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF T HE ASSESSEE AFRESH ON ITA NO. 419/KOL/2018 A.Y. 2012-2013 M/S. YOGENDRA INTERNATIONAL 3 MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIE NT OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 20, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 20 TH DAY OF DECEMBER, 2018 COPIES TO : (1) M/S. YOGENDRA INTERNATIONAL, 4, NARAYAN PRASAD BABU LANE, KOLKATA-700 007 (2) INCOME TAX OFFICER, WARD-45(4), KOLKATA, 3, GOVERNMENT PLACE WEST, KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.