Bijoynagar Tea Company Ltd. , Kolkata V. DCIT-4(1), Kolkata

ITA 470/KOL/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5859 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 11-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 144; 154; 43B; 143(3); 250

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'एसएमसी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA श्री प्रदीप क ु मार चौब े , न्याधयक सदस्य एवं श्री संजय अवस्थी, ल े खा सदस्य क े समक्ष Before PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No.: 470/KOL/2023 Assessment Year: 2016-17 Bijoynagar Tea Company Ltd..................................................Appellant [PAN: AABCB 4187 F] Vs. DCIT-4(1), Kolkata................................................................Respondent Appearances: Assessee represented by: Puja Agarwal, AR. Department represented by: Madhumita Dey, Addl. CIT. Date of concluding the hearing : June 11 th , 2024 Date of pronouncing the order : July 10 th , 2024 ORDER Per Pradip Kumar Choubey, Judicial Member: This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2016-17 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- NFAC, Delhi [in short ld. ‘CIT(A)’] dated 15.03.2023 arising out of the assessment order framed u/s 154 read with Section 143(3) of the Act dated 30.07.2019. 2. The brief facts of the case of the appellant is that he has filed its the return of income for the AY 2016-17 declaring the loss of 1,09,14,275/- and I.T.A. No.: 470/KOL/2023 Assessment Year: 2016-17 Bijoynagar Tea Company Ltd. Page 2 of 4 return was filed well within the due date. It was observed from the record that there was a mistake in computation of total income of the assessee company. Accordingly, notice u/s 154 of the Act was issued as per the Assessing Officer’s order to the assessee and the AO has observed from the records and inadvertently allowed excess carry forward loss amounting to Rs. 3,27,75,487/-. Against the said assessment order assessee has filed an appeal but wherein also the disallowance of carry forward of loss on account of belated return has been upheld by the ld. CIT(A). Being aggrieved and dissatisfied with the said order the assessee has preferred the present appeal. 2.1. The sole grievance of the ld. Counsel for the assessee is that the assessee has not been served any notice u/s 154 of the Act, the assessee was not aware of any such emails or any communication to be received by the assessee from the Income Tax Department, his submission is that the order passed by the AO without giving any opportunity to the assessee to be heard. Ld. Counsel for the assessee further submits that as per the order of the AO after receiving notices assessee filed an objection for the proposed rectification that is completely far from the record and there is nothing in the record that assessee has filed any objection. He has filed an affidavit to this effect. 3. Contrary to that the ld. D/R supports the impugned order. 4. We have perused the record, and after hearing the submission of the Counsels of respective parties, we find that the AO in its order has stated that notice u/s 144 of the Act was issued to the assessee, in reply to this notice assessee filed an objection for the proposed rectification, the same was rejected. In the light of the statement of the Counsel of the appellant as well as the order passed by the AO, it was essential to ask from the Department to produce the documents. Accordingly, vide order dated 19.03.2024 Coordinate Bench of ITAT has passed an order which is as such— The ld. Counsel for the assessee perused all those documents and in order to rebut once to file an affidavit in support of the case. The ld. D/R is directed I.T.A. No.: 470/KOL/2023 Assessment Year: 2016-17 Bijoynagar Tea Company Ltd. Page 3 of 4 to place on record copy of the notice as well as copy of the reply filed by the assessee. 4.1. It is pertinent to mention here that the ld. D/R, in spite of giving direction, did not file copy of the reply filed by the assessee as alleged in the order of the AO. There is nothing brought by the D/R to establish that notices have been served to the assessee and after receiving notices assessee has filed an objection. As have already stated in our preceding paragraph that the assessee to rebut the contention of the D/R has filed an affidavit to this effect in which he has clearly stated that BTL has not received any such notice dated 01.07.2019 and any rejection of his letter dated 16.07.2019 as stated in the order of the AO. Section 154 of the Act speaks of a notice of the intention of the Revenue to enhance the assessment or reduce the refund and to give an opportunity to the assessee of being heard. Hon'ble Supreme Court in the case of M.Chockalingam and Ors. vs. Commissioner of Income tax Madras held that a notice had to be sent to the assessee and he was to be given a reasonable opportunity of being heard. The Hon'ble Supreme Court has further said that if the opportunity was not given and if a fair hearing was not given, the proceeding would be bad. The observation of the Hon'ble Supreme Court goes to show that the object of the provision as to notice in the Act is that no order should be passed to the detriment of the assessee without affording him an opportunity. We have noticed in the present case that the Department did not bring anything to establish that notices have been served and in response to the notice reply has been submitted by the assessee. It is also pertinent to mention here that as the assessee was not aware of the reason of the return being defective, the company therefore, filed the belated return and appeal before the ld. CIT(A) has also been disallowed on the ground that the original return was filed after due date. Ld. CIT(A) has also not discussed on the issue related to disallowance under section 43B of the Act. 5. Keeping in view the above discussion and the facts are undisputed that notices have not been received by the assessee, the assessee has not been heard by the AO which was the essential ingredient to pass an order u/s 154 of the Act. We find that this is a fit case to send back to the file of the AO to I.T.A. No.: 470/KOL/2023 Assessment Year: 2016-17 Bijoynagar Tea Company Ltd. Page 4 of 4 be heard and thereafter, pass fresh order. Accordingly, the order of the AO and the ld. CIT(A) are set aside. The case is remanded back to the file of the AO, the assessee shall place his case and the AO thereafter, pass a fresh order after giving an opportunity to the assessee to be heard. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 10 th July, 2024. Sd/- Sd/- [Sanjay Awasthi] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 10.07.2024 Bidhan (P.S.) Copy of the order forwarded to: 1. Bijoynagar Tea Company Ltd., 11, Govt. Place East, Dalhousie Square, Kolkata, West Bengal, 700069. 2. DCIT-4(1), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata