Debdarshan Vinimay Pvt. Ltd., Kolkata V. I.T.O.,Ward-6(1), Kolkata

ITA 542/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0147 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: MANISH TIWARI
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.542/KOL/2019 ( / ASSESSMENT YEAR: 2009-10) DEBDARSHAN VINIMAY PVT. LTD. C/O, A.K. JAIN, 15B, CLIBE ROW (DR. RAJENDRA PRASAD SARANI), KOLKATA-700001 VS. ITO, WARD-6(1), KOLKATA ./ ./PAN/GIR NO.: AACCD 9345 E (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MANISH TIWARI, FCA RESPONDENT BY : SHRI JAYANTA KHANRA, JCIT, SR. DR / DATE OF HEARING : 20/12/2019 /DATE OF PRONOUNCEMENT : 31/12/2019 / O R D E R PER DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PE RTAINING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-9, KOLKATA IN APPEAL NO. 10/CIT(A)-9/WD-6( 1)/2017-18/KOL, WHICH IN TURN ARISES OUT OF ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 R.W. 263 R.W. 147 R.W. 143(3) OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT) DATED 10/03/2015. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE NOTICE FOR HEARING WAS NOT SERVED ON THE ASSESSEE DURING THE A SSESSMENT STAGE. THE ASSESSEE INFORMED THE ASSESSING OFFICER ABOUT THE CHANGE OF ADDRESS BY LETTER DATED 26.02.2015 HOWEVER, THE ASSESSING OFFICER DID NOT S END THE NOTICES ON CHANGED DEBDARSHAN VINIMAY PVT. LTD. ITA NO.542/KOL/2019 ASSESSMENT YEAR: 2009-10 P PP PA AA AG GG GE EE E | || | 2 22 2 ADDRESS THEREFORE NOTICES WERE NOT SERVED ON THE AS SESSEE AND AS A RESULT THE ASSESSEE COULD NOT RESPOND THE QUERIES RAISED BY AS SESSING OFFICER DURING THE ASSESSMENT STAGE. THIS FACT IS CLEARLY EVIDENT BY T HE ASSESSMENT ORDER; VIDE PARA 9 OF THE ASSESSMENT ORDER WHICH IS REPRODUCED BELOW F OR READY REFERENCE: 9. THE ASSESSEE FILED A LETTER DATED ON 26/02/2015 FOR CHANGE IN ADDRESS TO 11, CLIVE ROW. THIS ALSO SHOWED THAT INTENTION OF THE A SSESSEE. THIS PLAY COULD NOT WORK REASONS DETAILED IN THE PARAGRAPH 5. 3. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCU MENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE ASSESSING OFFICER DUE TO NON-SERVICE OF NOTICE ON HIM. THEREFORE, DURING THE ASSESSMENT STAGE, THE ASSESSE E COULD NOT GET OPPORTUNITY TO EXPLAIN ITS CASE, THEREFORE, WE THINK IT FIT AND AP PROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER. FOR THAT WE RELY ON THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF TIN BOX CO. VS. CIT REPORTED I N (2001) 249 ITR 216 (SC) WHEREIN IT WAS HELD AS UNDER: THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFOR E THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSE SSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. THEREFORE, THE TRIBUNAL WAS NOT JUSTIFIED IN NOT SE TTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE ITO HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, THE APPEALS WERE ALLOWED. THE ORDER UN DER CHALLENGE WAS SET ASIDE. THE ASSESSMENT ORDERS, THAT OF THE COMMISSIONER (AP PEALS) AND OF THE TRIBUNAL, WERE ALSO SET ASIDE. THE MATTER SHALL BE REMANDED T O THE ASSESSING AUTHORITY FOR FRESH CONSIDERATION. ORDER 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 AUTH ORITY, 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 H EARD.' DEBDARSHAN VINIMAY PVT. LTD. ITA NO.542/KOL/2019 ASSESSMENT YEAR: 2009-10 P PP PA AA AG GG GE EE E | || | 3 33 3 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 GIVEN 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 FO R 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 PROP ER 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 A UTHORITY FOR FRESH CONSIDERATION, AS AFORESTATED. NO ORDER AS TO COSTS . CONSIDERING THE ABOVE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE ASSE SSING OFFICER. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THIS IS SUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION. THUS, T HE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 31.1 2.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 31/12/2019 ( SB, SR.PS ) DEBDARSHAN VINIMAY PVT. LTD. ITA NO.542/KOL/2019 ASSESSMENT YEAR: 2009-10 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. DEBDARSHAN VINIMAY PVT. LTD. 2. ITO, WARD-6(1), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES