M/s Raincom Commodities Private Limited, Kolkata V. ITO, Ward 4(1), Kolkata, Kolkata

ITA 457/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1228 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Assessee Lawyers: ANKIT JALAN
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.457/KOL/2017 ASSESSMENT YEAR:2012-13 M/S RAINCOM COMMMODITIES PVT. LTD., 5/1, CLIVE ROW, 2 ND FLOOR, KOLKATA-700001 [ PAN NO.AABCR 6307 B ] / V/S . INCOME TAX OFFICER, WARD-4(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKT-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI ANKIT JALAN, AR /BY RESPONDENT SHRI G. HANGSHING, CIT-DR /DATE OF HEARING 21-03-2018 /DATE OF PRONOUNCEMENT 23-03-2018 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 201 2-13 IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-2, KOLKATA DATED 06.12.2016. SHRI ANKIT JALAN, LD. AUTHORIZED REPRESENTATIVE APP EARED ON BEHALF OF ASSESSEE AND SHRI G. HANGSHING, LD. DEPARTMENTAL REPRESENTAT IVE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET, IT WAS OBSERVED FROM THE ORDER OF LD. CIT(A) THAT THE LAST DATE OF HEARING OF THE APPEAL WAS FIXED ON 29.11.20 16 BUT NONE-APPEARED ON ITA NO. 457/KOL/2017 A.Y.2 012-13 M/S RAINCOM COMMODITIES PVT. LTD. VS. ITO WD-4 (1), KOL. PAGE 2 BEHALF OF ASSESSEE. THEREFORE, THE LD. CIT(A) PASSE D EX PARTE ORDER DUE TO NON APPEARANCE OF THE ASSESSEE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILED AN APPEAL BEFORE US AND PLEADED IN T HE GROUNDS OF APPEAL THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPOR TUNITY TO THE ASSESSEE. 3. ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIONING AN Y REASON FOR CONFIRMING THE SAME ON MERITS. THE PROVISIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN W RITING WITH REASONING. BUT WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO C ONFIRMED THE ORDER OF AO WITHOUT DECIDING THE SAME ON MERIT. WE FIND THAT TH E LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRIN CIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRE SSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNIT Y TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOS URE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASO NED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RU LE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. TH EREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNIT Y OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT (A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AFTER ALLOWIN G PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENT ION THAT THE ASSESSEE WILL ITA NO. 457/KOL/2017 A.Y.2 012-13 M/S RAINCOM COMMODITIES PVT. LTD. VS. ITO WD-4 (1), KOL. PAGE 3 COOPERATE IN THE APPEAL PROCEEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLO WED FOR STATISTICAL PURPOSE. 4. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 23/03/2018 SD/- SD/- ( % ') ( ') (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ) - 23/03/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S RAINCOM COMMODITIES PVT. LTD., 5/1CL IVE ROW, KOLKATA-001 2. /RESPONDENT-ITO, WARD-4(1), AAYAKAR BHWAN, P-7, CHO WRINGHEE SQ. KOL-69 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . %%, , , / DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO ,,