M/s. Broadway Realtors (Pvt.) Ltd., , Kolkata V. ITO, Ward - 12(2), Kolkata , Kolkata

ITA 515/KOL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6286 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 40A(3); 143(3); 154

Judgement Text

I.T.A. NO 515/KOL/2018 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 515/KOL/2018 ASSESSMENT YEAR: 2009-2010 M/S. BROADWAY REALTORS (PVT.) LIMITED,............. .............................APPELLANT P-595, PURNA DAS ROAD, KOLKATA-700 029 [PAN: AACCB 2810 Q] -VS.- INCOME TAX OFFICER,................................ ............................................RESPOND ENT WARD-12(2), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-700 069 APPEARANCES BY: SHRI MIHIR BANDYOPADHYAY, A.R., FOR THE APPELLANT SHRI NICHOLAS MURMU, ADDL. CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 11, 2018 DATE OF PRONOUNCING THE ORDER : JUNE 11, 2018 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA DAT ED 27.12.2017 PASSED EX-PARTE , WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 23.03.2010 DECLARING TOTAL INCOME OF RS.91,349/-. IN THE ASSES SMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.04.2014, THE TOTAL INCOME AS DECLARED BY THE ASSESSEE IN THE RETURN WAS ACCEPTED BY THE ASSESSING OFFICER. SUBSEQUENTLY HE, HOWEVER, FOUND THAT THERE WAS A MISTAKE IN THE SAID ASSESSMENT IN NOT DISALLOWING TWO CASH PAYMENT S MADE BY THE ASSESSEE AGAINST THE EXPENDITURE IN THE SUMS EXCEED ING RS.20,000/- AS REQUIRED BY SECTION 40A(3) OF THE ACT. HE ACCORDING LY RECTIFIED THE SAID I.T.A. NO 515/KOL/2018 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 3 MISTAKE VIDE AN ORDER DATED 29.04.2014 PASSED UNDER SECTION 154 MAKING A DISALLOWANCE OF RS.69,791/- UNDER SECTION 40A(3) OF THE ACT. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 154, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(APPEA LS) FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LATER DIS MISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 27.12.2017 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE HE TRIBUNAL. 4. AT THE OUTSET, IT IS NOTICED THAT THERE IS A DEL AY OF 14 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKI NG CONDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN TH EREIN, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 14 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBU NAL. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. I ACCORDIN GLY CONDONE THE SAID DELAY. 5 . IN GROUND NO. 1 RAISED IN THIS APPEAL, THE ASSE SSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PA SSED BY THE LD. CIT(APPEALS) EX- PARTY WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUN ITY OF BEING HEARD. IN SUPPORT OF THE CASE OF THE ASSESSEE ON THIS ISSUE, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ALTHOUG H NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE FIRST TWO HEARINGS FI XED BY THE LD. CIT(APPEALS) ON 01.08.2017 AND 30.08.2017, THE ASSE SSEE DULY SOUGHT ADJOURNMENTS IN WRITING ON THE SUBSEQUENT TWO HEARI NGS FIXED BY THE LD. CIT(APPEALS) ON 26.09.2017 AND 06.11.2017 ON THE GR OUND OF SERIOUS ILLNESS OF THE WIFE OF THE LD. AUTHORIZED REPRESENT ATIVE OF THE ASSESSEE. HE HAS SUBMITTED THAT THEREAFTER THE HEARING WAS FIXED BY THE LD. CIT(APPEALS) ON 21.12.2017, BUT THE ASSESSEE COULD NOT ATTEND ON THE SAID I.T.A. NO 515/KOL/2018 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 3 DATE AS THE NOTICE OF THE SAID HEARING WAS NEVER RE CEIVED BY THE ASSESSEE. HE HAS CONTENDED THAT THE LD. CIT(APPEALS), HOWEVER , DID NOT GIVE ANY MORE OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO D ISMISS THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. HE HAS CONTENDED THAT THERE IS THUS A CLEAR VIOLATION OF PRINCIPLE O F NATURAL JUSTICE BY THE LD. CIT(APPEALS) AND EVEN THE LD. D.R. HAS NOT BEEN ABL E TO DISPUTE THIS POSITION. I, THEREFORE, SET ASIDE THE IMPUGNED ORDE R PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND REMAND THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GI VING THE ASSESSEE ONE MORE OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(APPEALS) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (APPEALS) TO DISPOSE OF THE APPEAL ON MERIT EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 11, 2018 . SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 11 TH DAY OF JUNE, 2018 COPIES TO : (1) M/S. BROADWAY REALTORS (PVT.) LIMITED, P-595, PURNA DAS ROAD, KOLKATA-700 029 (2) INCOME TAX OFFICER, WARD-12(2), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O. INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.