Yogomaya Vyapaar Pvt. Ltd., Kolkata V. ITO, Ward -9(2) Kolkata, Kolkata

ITA 434/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6438 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA CIT LD
• Assessee Lawyers: SIDDHARTH AGARWAL LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 68

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWA NETHRA RAVI, JM ITA NO. 434/KOL /2017 A.Y : 2012-13 M/S. YOGOMAYA VYAPAAR VS. I.T.O. WARD 9(2) PVT. LTD. KOLKATA PAN: AACCY 5389H [ APPELLANT ] [ RESPONDENT ] APPELLANT BY : SHRI SIDDHARTH AGARWAL, A DVOCATE, LD.AR RESPONDENT BY : SHRI S.DASGUPTA, ADDL. CI T, LD.DR DATE OF HEARING : 21-03-2018 DATE OF PRONOUNCEMENT : 02 -05-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT . 15-12-2016 OF THE CIT-A, 3, KOLKATA FOR THE A.Y 2012-13. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN PASSING ORDER EX PARTE IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. 3. THE LD. AR SUBMITS THAT ONE OF ITS DIRECTORS, WH O WAS ENTRUSTED WITH TAX MATTERS OF ASSESSEE COMPANY WAS UNWELL AND DUE TO SAID REASON NO ONE APPEARED BEFORE THE CIT-A AND THE APPEAL WAS DI SMISSED EX PARTE. IN SUPPORT OF THIS CONTENTION, THE LD.AR REFERRED TO AN AFFIDAVIT DT. 22/23-05- 2017, WHICH IS ON RECORD AND ARGUED THAT THE ASSESS EE DOES NOT HAVE SUFFICIENT OPPORTUNITY BEFORE THE CIT-A TO PROSECUT E ITS CASE. THE LD.AR UNDERTAKES THAT THE ASSESSEE IS NOW READY TO PROSEC UTE ITS CASE BEFORE THE CIT-A WITHOUT ANY FAIL AND PRAYED TO REMAND THE MATTER TO THE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AO & CIT- A. HE VEHEMENTLY OPPOSED TO SUCH SUBMISSIONS OF THE LD.AR IN REMANDING ITA NO 434/KOL/2017 2 THE MATTER TO THE FILE OF THE CIT-A FOR HIS FRESH C ONSIDERATION. HE REFERRED TO PARA 2 OF THE ORDER OF THE CIT-A AND ARGUED THAT THE ASSESSEE WITHOUT PROSECUTING ITS CASE KEPT ON SEEKING ADJOURNMENTS. THE CIT-A RIGHTLY DISMISSED THE APPEAL OF ASSESSEE EX PARTE AND PRAY ED TO DISMISS THE APPEAL OF ASSESSEE. 5. HEARD RIVAL SUBMISSIONS & PERUSED THE RECORD. I T IS NOTICED THAT THE AO DETERMINED THE TOTAL INCOME OF ASSESSEE AT RS. 5 ,01,90,184/- BY MAKING AN ADDITION OF RS.5,01,90,000/- U/S. 68 OF T HE ACT VIDE HIS ORDER DT. 23-03-2013 PASSED U/S. 143(3) OF THE ACT. IT IS ALSO CLEAR FROM THE ASSESSMENT ORDER THAT THE ASSESSEE COULD NOT PROVID E THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE PARTIES IN RESPECT OF AMOUNT INVOLVED U/S. 68 OF THE ACT. ON PERUSAL OF AN AFFID AVIT DT. 22/23-05-20117, COPY OF THE SAME IS ON RECORD, IT IS NOTICED THAT O NE OF THE DIRECTORS OF THE ASSESSEE, SHRI GOUTAM SINGH, WHO IS LOOKING AFTER T HE TAX MATTERS OF THE ASSESSEE WAS SUFFERING FROM FEVER, HE COULD NOT AT TEND THE OFFICE FROM 30/11/16 TO 04/12/2016. AS SUCH, PROPER COMPLIANCES COULD NOT BE MADE ON BEHALF OF ASSESSEE BEFORE THE CIT-A. THE SAID DI RECTOR, SHRI GOUTAM SINGH BY THE SAID AFFIDAVIT UNDERTAKES THAT THE ASS ESSEE IS NOW READY TO MAKE PROPER COMPLIANCE BEFORE THE CIT-A IF THIS TRI BUNAL PLEASES TO REMAND THE MATTER TO THE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION. WE FIND THAT THE CASE OF ASSESSEE WAS FIXED FOR HEARIN G ON 02-12-2016 AND THE ASSESSEE SOUGHT ADJOURNMENT BEFORE THE CIT-A. ON PERUSAL OF ASSESSMENT ORDER, WE FIND THAT THE ASSISTANCE OF AS SESSEE IS REQUIRED TO SUBSTANTIATE ITS CLAIM AND CONTENTION. IN SUCH CIRC UMSTANCES, TAKING INTO CONSIDERATION THE SUBMISSIONS OF LD.AR AND IN THE I NTEREST OF NATURAL JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MA TTER INVOLVED IN THE APPEAL TO THE FILE OF CIT-A FOR HIS FRESH ADJUDICAT ION AND TO PASS A FRESH ORDER AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUAT E OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE ASSESSEE IS DIRECTED NOT TO SEEK ANY ADJOURNMENT AND TO CO-OPERATE WITH THE CIT-A IN THE FIRST APPE LLATE PROCEEDINGS FOR ITA NO 434/KOL/2017 3 SPEEDY DISPOSAL OF THE CASE. THEREFORE, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE-ITA NO.434 /KOL/2017 FOR THE A.Y 2012-13 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02-0 5-2018 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. YOGOMAYA VYAPAAR PVT. LTD 14/1 SIR HARIRAM GOENKA STREET, KOLKATA-7. 2 RESPONDENT/ASSESSEE: INCOME TAX OFFICER, WARD 9(2), 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