Ashtavinayak Tradecom Pvt. Ltd., Durgapur V. ITO, Ward-9(1), Kolkata

ITA 458/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5069 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 24-07-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: BISWESWAR GHOSH
• Keywords: Opportunity of being heard; Set aside

Judgement Text

ITA NO. 458/KOL/2020 M/S ASHTAVINAYAK TRADECOM PVT. LTD. A.Y. 2014-15 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, VICE-PRESIDENT AND SHRI A. T. VARKEY, JM] I.T.A. NO. 458/KOL/2020 ASSESSMENT YEAR: 2014-15 M/S ASHTAVINAYAK TRADECOM PVT. LTD. (PAN: AAHCA 9347 G ) VS. ITO, WARD-9(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 01.10.2020 DATE OF PRONOUNCEMENT 07. 10.2020 FOR THE APPELLANT SHRI BISWESWAR GHOSH, A.R FOR THE RESPONDENT SHRI JAYANTA KHANRA, D.R. ORDER PER SHRI A.T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAIN ST THE ORDER OF LD. CIT(A)-15, KOLKATA DATED 28.03.2019 FOR A.Y. 2014-15. 2. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE LD. CIT(A) HAS PASSED AN EX-PARTE ORDER WITHOUT GOING INTO THE MERITS OF THE CASE. HE ALSO POINTED OUT THAT EVEN THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER UNDER 144 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WITHOUT GI VING PROPER OPPORTUNITY TO THE ASSESSEE. IN ORDER TO BUTTRESS THE PLEA OF LACK OF PROPER OPPORTUNITY BEFORE THE ASSESSING OFFICER, BEFORE US THE ASSESSEE HAS FILE D AN AFFIDAVIT WHICH HAS BEEN DULY NOTARIZED DATED 24.06.2020. FROM A PERUSAL OF THE C ONTENTS OF THE AFFIDAVIT, WE NOTE THAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BE FORE THE ASSESSING OFFICER, SO WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER AND RE MIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PASSING FRESH ASSESSMENT. THE LD. A.R HAS UNDERTAKEN TO APPEAR ITA NO. 458/KOL/2020 M/S ASHTAVINAYAK TRADECOM PVT. LTD. A.Y. 2014-15 DILIGENTLY BEFORE THE ASSESSING OFFICER WITH ALL DO CUMENTS TO SUBSTANTIATE ITS CLAIM OR FILE WRITTEN SUBMISSION AND DOCUMENTS TO SUBSTANTIA TE ITS CLAIM BEFORE THE ASSESSING OFFICER . FOR REMANDING FOR FRESH ASSESSMENT BACK T O THE FILE OF THE ASSESSING OFFICER IN THE ABOVE SAID CIRCUMSTANCES, WE RELY ON THE DEC ISION OF HONBLE SUPREME COURT IN THE CASE OF TIN BOX CO. VS. CIT IN (2001) 116 TAXMA N 491 (SC) WHICH READS AS UNDER: 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT READS THUS : 'WE WILL STRAIGHTWAY AGREE WITH THE ASSESSEES SUBM ISSION THAT THE ITO HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD.' THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVE N A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 2. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, O F WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ?' IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. 3. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDERS, THAT OF THE COMMISSIONER (APPEALS) AND OF T HE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHO RITY FOR FRESH CONSIDERATION, AS AFORESTATED. NO ORDER AS TO COSTS. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF HO NBLE SUPREME COURT IN THE CASE OF TIN BOX CO. (SUPRA) WE SET ASIDE THE ORDER OF THE L D. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ASSESSME NT AND THE ASSESSEE IS DIRECTED TO DILIGENTLY APPEAR THROUGH ITS DIRECTORS/ A.R / OR F ILE WRITTEN SUBMISSION AND DOCUMENTS BEFORE THE ASSESSING OFFICER FOR SUBSTAN TIATING ITS CLAIM AND THE ASSESSING OFFICER TO FRAME FRESH ASSESSMENT AFTER H EARING THE ASSESSEE IN ACCORDANCE TO LAW. ITA NO. 458/KOL/2020 M/S ASHTAVINAYAK TRADECOM PVT. LTD. A.Y. 2014-15 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 07.10.202 0. SD/- SD/- (J(( (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 07.10.2020 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- M/S ASHTAVINAYAK TRADECOM PVT. LTD., 5/5 /, SUHATTA MALL, 5 TH FLOOR, CITY CENTRE, DURGAPUR, BARDHAMAN-713216. 2. RESPONDENT- ITO, WARD-9(1), KOLKATA 3. THE CIT(A)-15, KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES, KOLKATA