M/s. Miller Traders Private Limited, Kolkata V. ITO, Ward4(2), Kolkata, Kolkata

ITA 442/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6442 (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: C
• 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: MANOJ KATARUKA LD
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWA NETHRA RAVI, JM ITA NO. 442/KOL /2017 A.Y : 2012-13 M/S. MILLER TRADERS VS. I.T.O. WARD 4(2), PVT. LTD. KOLKATA PAN: AADCM 0843P [ APPELLANT ] [ RESPONDENT ] APPELLANT BY : SHRI MANOJ KATARUKA, ADV OCATE, LD.AR RESPONDENT BY : SHRI S. DASGUPTA, ADDL. C IT, LD.DR DATE OF HEARING : 21-03-2018 DATE OF PRONOUNCEMENT : 0 2-05-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D T. 19-12-2016 OF THE CIT-A, 2, 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 THE ASSESSEE HAS AUTHORI ZED HIM TO REPRESENT ITS CASE BEFORE THE CIT-A AND HE WAS AWAY FROM KOLKATA TO ATTEND A MARRIAGE OF HIS COUSIN IN NEW DELHI. HE H AD TO TRAVEL TO DELHI DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THE CIT-A AND AS SUCH HE WAS ABSENT BEFORE THE CIT-A AND FOR NON APPEARAN CE OF THE LD.AR THE CIT-A PASSED EX PARTE ORDER. THE LD.AR PRAYED AN O PPORTUNITY BE GIVEN TO ASSESSEE TO PROSECUTE ITS CASE BEFORE THE CIT-A AND REMAND THE MATTER TO THE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION A ND TO PROSECUTE ITS CASE BEFORE THE CIT-A. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AO & CIT- A. HE VEHEMENTLY OPPOSED TO THE ABOVE SUBMISSIONS O F THE LD.AR IN ITA NO.442/KOL/2017 2 REMANDING THE MATTER TO THE FILE OF CIT-A AND REFER RED TO PAGE-4 OF THE ORDER OF THE CIT-A AND ARGUED THAT THE CIT-A FIXED THE APPEAL OF ASSESSEE FOR HEARING ON FOUR OCCASIONS AND IN ALL THE OCCASI ONS THE AR FILED APPLICATION SEEKING ADJOURNMENTS WITHOUT PROCEEDING WITH THE APPEAL. ON LAST OCCASION I.E 15-12-2016, NEITHER THE ASSESSEE NOR THE AR ATTENDED BEFORE THE CIT-A TO PROSECUTE ITS CASE. THE CIT-A H AS AFFORDED SUFFICIENT OPPORTUNITIES OF HEARING TO ASSESSEE, BUT THE ASSES SEE FAILED TO AVAIL THESE OPPORTUNITIES BY FILING NECESSARY EVIDENCE AND EXPL ANATION TO SUBSTANTIATE ITS CLAIM AND CONTENTION AND THE CIT-A HAS RIGHTLY DISMISSED THE APPEAL OF ASSESSEE BY EX PARTE. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS NOTICED THAT THE AR OF THE ASSESSEE FILED APPLICATIONS BEFORE TH E CIT-A SEEKING ADJOURNMENTS ON THREE OCCASIONS I.E 6/9/2016, 3/10/ 2016 & 30/11/2016. IT IS ALSO NOTICED THAT THE AR TRAVELLED TO DELHI T O ATTEND A MARRIAGE OF HIS COUSIN TO THAT EFFECT THE AR OF ASSESSEE FILED COP Y OF BOARDING PASS OF FLIGHT JET AIRWAYS DT. 15-12-2016. ON PERUSAL OF TH E ASSESSMENT ORDER, WE FIND THAT THE ADDITION WAS MADE ON ACCOUNT OF UNEXP LAINED INCOME. FOR WHICH THE ASSISTANCE OF ASSESSEE IS REQUIRED TO SUB STANTIATE ITS CLAIM AND CONTENTION BEFORE THE CIT-A. IN SUCH CIRCUMSTANCES, 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 APPEL LATE PROCEEDINGS FOR SPEEDY DISPOSAL OF THE CASE. THEREFORE, GROUNDS RAI SED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ITA NO.442/KOL/2017 3 6. IN THE RESULT, THE APPEAL OF ASSESSEE-ITA NO.442 /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. MILLER TRADERS PVT. LTD 9 EZRA STREET, TOP FLOOR, KOLKATA-700 001. 2 RESPONDENT/ASSESSEE: INCOME TAX OFFICER, WARD 4(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