MD, Abdul Hannan, Malda V. ITO, Ward - 1, Malda, Malda

ITA 463/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48200 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2011
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Assessee Lawyers: V N PUROHIT
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . , ! '# '# '# '# /AND ' # , ! ) [BEFORE HONBLE SHRI S. V. MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM] #$ #$ #$ #$ / I.T.A NO. 463/KOL/2011 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEAR: 2005-06 MD. ABDUL HANNAN VS. INCOME-TAX OFFICER, WD-1, M ALDA. (PAN-AAZPH 9021 P) ( *+ /APPELLANT ) (,-*+/ RESPONDENT ) *+ . / / FOR THE APPELLANT: SHRI V. N. PUROHIT ,-*+ . / / FOR THE RESPONDENT: SHRI P. P. SARKAR 0 / ORDER PER MAHAVIR SINGH, JM/ ' # ' # ' # ' # , ! ! ! ! : THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A), JALPAIGURI IN APPEAL NO.238/MLD/CIT(A)/JAL.07-08 VIDE DATED 28.10.2010. THE ASSESSMENT WAS FRAMED BY ITO, WD-1, MALDA U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DATED 31.12. 2007. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT CIT(A) HAS PASSED EX PARTE ORDER AS IS CLEAR FROM THE VERY FIRST PARA OF HIS O RDER, WHICH READS AS UNDER: THIS APPEAL ARISES OUT OF THE ASSESSMENT ORDER PAS SED U/S. 143(3) OF THE I. T. ACT, 1961 BY THE ITO, WARD-1, MALDA ON 31.12.2007. THE APPEA L WAS FIXED FOR HEARING AND IN RESPONSE TO NOTICE ISSUED U/S. 250 OF THE ACT, THE A.R. OF THE ASSESSEE BEFORE MY LD. PREDECESSOR-IN-OFFICE ON 23.05.2008 & 17.07.2008 WH EN THE CASE WAS PARTLY HEARD AND ASSESSEE REQUESTED FOR ADJOURNMENT WHICH WAS ALLOWE D. TAKING OVER THE CHARGE, I HAVE AGAIN ISSUED ONE NOTICE ON 17.09.2010 FIXING THE DA TE FOR HEARING ON 28.10.2010 BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. AS THE HEARING WAS FIXED ON SEVERAL OCCASIONS BUT THE ASSESSEE DID NOT COMPLY PROPERLY, BEING HIGH DE MAND CASE, THE APPEAL IS DECIDED EX PARTE ON MERIT. THE ASSESSEE ALSO RAISED THE ISSUE REGARDING OPPORT UNITY AND VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BY WAY OF FOLLOWING TWO GROUNDS: 1. FOR THAT, ON THE FACT A CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME TAX (APPELLANT)S EX-PARTY ORDER IN APPEAL A GAINST THE ASSESSMENT ORDER U/S. 143(3) WITHOUT ALLOWING ANY REASONABLE OPPORTUNITY TO THE APPELLANT IS BAD IN LAW, ILLEGAL & AB INITLO VOID AND AS SUCH THE SAME ORDER IS FIT TO BE CANCELLED AND THE TOTAL ASSESSMENT ORDER SHOULD BE SET-ASIDE IN THE HANDS O F THE LEARNED ASSESSING OFFICER FOR RECONSIDERATION AFTER APPRECIATION OF THE FULL FACT OF THE CASE. 2 ITA 463/K/2011 MD. ABDUL HANNAN A.Y.05-06 2. FOR THAT, ON THE FACT A CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WITHOUT APPRECIATING THE FACT T HAT THE LEARNED ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER BY SHOWING ONLY THE APPELLANT FAILURE TO REPLY ON SHOW CAUSE NOTICE WITHOUT SHOWING ANY REASON OF FAI LURE. THEREFORE, THE LEARNED ASSESSING OFFICERS VERIFICATION WAS NOT PROPER FOR MAKING SO MANY NUMBERS OF ADDITIONS FOR SUCH HUGE AMOUNT. THEREFORE, THE CONF IRMATION OF SUCH HUGE ADDITIONS ONLY ON THE LEARNED ASSESSING OFFICERS REASONING W ITHOUT USING HIS OWN MIND ON SUCH ADDITIONS ARE BAD IN LAW & FACT. THEREFORE, TH OSE CONFIRMATION OF ADDITIONS ARE ALSO TOTALLY ARBITRARILY AND BASED ON SURMISED & CO NJECTURE AND THE TOTAL CONFIRMED ADDITIONS ARE FIT TO BE DELETED. 3. WE FIND THAT THE APPEAL WAS FIXED FOR HEARING O N 28.10.2010 AFTER ALMOST TWO YEARS, BUT NONE APPEARED. WE ARE OF THE VIEW THAT THE ASSE SSEE WAS NOT ALLOWED REASONABLE OPPORTUNITY OF BEING HEARD AND IN THE ABSENCE OF TH E SAME THE CIT(A) HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. HENCE, WE SET ASID E THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE CIT(A) TO DISPOSE OF AFR ESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APP EAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . ! ' '' ' # # # # , ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 1 1 1 1) )) ) DATED 10TH JUNE, 2011 '23 %45 6' JD.(SR.P.S.) 0 . ,7 87'9- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT MD. ABDUL HANNAN, BAKHARPUR, P.S. KALIA CHAK, DIST. MALDA. 2 ,-*+ / RESPONDENT, ITO, WARD-1, MALDA 3 . 0% ( )/ THE CIT(A), JALPAIGURI 4. 0% / CIT, 5 . '? ,% / DR, KOLKATA BENCHES, KOLKATA -7 ,/ TRUE COPY, 0%@/ BY ORDER, #5 /ASSTT. REGISTRAR .