Shri Surajit Sen, Son and Legal Heir of Anil Kumar Sen (Now Deceased), Kolkata V. ACIT, Circle - 40, Kolkata , Kolkata

ITA 445/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8732 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 143(3)

Judgement Text

ITA NOS. 445 & 446/KOL/2018 A.Y. 2013-2014 ANIL KUMAR SEN 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. NOS. 445 & 446/KOL/2018 ASSESSMENT YEAR: 2013-2014 ANIL KUMAR SEN (NOW DECEASED)...................... .......................APPELLANT C/O. SURAJIT SEN, S/O. LATE ANIL KUMAR SEN, 10, CROOKED LANE, KOLKATA-700 069 [PAN: AJJPS 2782 F] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ..................RESPONDENT CIRCLE-40, KOLKATA, 3, GOVT. PLACE WEST, KOLKATA-700 001 APPEARANCES BY: N O N E, 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):- THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST TWO SEPARATE ORDERS OF LD. COMMISSIONER OF INCOME TAX ( APPEALS)-12, KOLKATA, BOTH DATED 04.09.2017. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 27.07.2013 DECLARING TOTAL INCOME OF RS.45,05,630/-. IN THE AS SESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 21.08.2015 , THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICE R AT RS.62,22,140/- AFTER MAKING CERTAIN ADDITIONS. THE ASSESSING OFFIC ER ALSO INITIATED ITA NOS. 445 & 446/KOL/2018 A.Y. 2013-2014 ANIL KUMAR SEN 2 PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AND SIN CE THE EXPLANATION OFFERED BY THE ASSESSEE IN RESPONSE TO THE NOTICES ISSUED DURING THE COURSE OF THE SAID PROCEEDINGS WAS NOT FOUND ACCEPT ABLE BY HIM, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.4,41,060/- UNDER SECTION 271(1)(C) BEING 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. 3. AGAINST THE ORDERS PASSED BY THE ASSESSING OFFIC ER UNDER SECTIONS 143(3) AND 271(1)(C), TWO SEPARATE APPEALS WERE PRE FERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THER E WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED B Y HIM FIXING THE SAID APPEALS FOR HEARING FROM TIME TO TIME, THE LD. CIT( APPEALS) DISMISSED THE APPEALS OF THE ASSESSEE VIDE HIS TWO SEPARATE ORDER S BOTH DATED 04.09.2017 PASSED EX-PARTE. AGGRIEVED BY THE ORDERS OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THESE APPE ALS BEFORE THE TRIBUNAL. 4. AS NOTED AT THE OUTSET, THERE IS A DELAY OF 45 D AYS ON THE PART OF THE ASSESSEE IN FILING THESE APPEALS BEFORE THE TRIBUNA L. IN THIS REGARD, APPLICATIONS ARE FILED BY THE LD. AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE SEEKING CONDONATION OF THE SAID DELAY AND KEEPING I N VIEW THE REASONS GIVEN THEREIN, WE ARE SATISFIED THAT THERE WAS A SU FFICIENT CAUSE FOR THE DELAY OF 45 DAYS ON THE PART OF THE ASSESSEE IN FIL ING THESE APPEALS BEFORE THE TRIBUNAL. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. WE ACCORDINGLY CONDONE THE SAID DELAY AND PROCEED T O DISPOSE OF THESE APPEALS OF THE ASSESSEE ON MERIT. 5. AT THE TIME OF HEARING FIXED TODAY IN THESE CASE S, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. IT IS, HOWEVER, NOTED TH AT THESE APPEALS ARE FILED BY THE LEGAL HEIR OF THE ASSESSEE AND AS MENT IONED IN THE GROUNDS RAISED IN THESE APPEALS, THE ASSESSEE HAS EXPIRED O N 23.12.2016. AS FURTHER STATED IN THE GROUNDS, THE ASSESSEE WAS NO MORE EVEN WHEN HIS APPEALS WERE TAKEN UP FOR HEARING BY THE LD. CIT(AP PEALS) AND SINCE THE ITA NOS. 445 & 446/KOL/2018 A.Y. 2013-2014 ANIL KUMAR SEN 3 NOTICES OF HEARINGS ISSUED BY THE LD. CIT(APPEALS) COULD NOT BE SERVED ON THE ASSESSEE, THERE WAS NO COMPLIANCE ON BEHALF OF THE ASSESSEE. IN THE GROUNDS RAISED, THE IMPUGNED ORDERS PASSED BY THE L D. CIT(APPEALS) EX- PARTE ARE ALSO CHALLENGED ON THE GROUND THAT NOTICE OF HEARING WAS NOT GIVEN BY THE LD. CIT(APPEALS) TO THE LEGAL HEIR OF THE ASSESSEE BEFORE PASSING THE SAID ORDERS. KEEPING IN VIEW THIS GRIEV ANCE PROJECTED IN THE GROUNDS RAISED IN THESE APPEALS OF THE ASSESSEE, TH E LD. D.R. HAS SUBMITTED THAT THESE CASES MAY BE REMITTED BACK TO THE LD. CI T(APPEALS) FOR DISPOSING OF THE APPEALS OF THE ASSESSEE AFRESH AFT ER BRINGING THE LEGAL HEIR OF THE ASSESSEE ON RECORD AND AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO SUCH LEGAL HEIR. WE FIND MERIT IN THIS CON TENTION OF THE LD. D.R. ACCORDINGLY THE IMPUGNED ORDERS OF THE LD. CIT(APPE ALS) ARE SET ASIDE AND THE MATTER IS REMITTED TO THE LD. CIT(APPEALS) FOR DISPOSING OF THE APPEALS OF THE ASSESSEE AFRESH AFTER BRINGING THE LEGAL HEI R OF THE ASSESSEE ON RECORD AND AFTER GIVING THE SAID LEGAL HEIR PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 5. 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) ANIL KUMAR SEN (NOW DECEASED) C/O. SURAJIT SEN, S/O. LATE ANIL KUMAR SEN, 10, CROOKED LANE, KOLKATA-700 069 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-40, KOLKATA, 3, GOVT. PLACE WEST, KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKAT A, ITA NOS. 445 & 446/KOL/2018 A.Y. 2013-2014 ANIL KUMAR SEN 4 (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.