Golam Aspia, Burdwan V. ITO, Ward-1(4), Burdwan

ITA 547/KOL/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7437 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PALAS CHATTOP ADHYAY
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. No. 547/Kol/2021 Assessment Year : 2014-15 Golam Aspia (PAN: ACIPA 8800 A) Vs. ITO, Ward-1(4), Burdwan Appellant Respondent Date of Hearing (Virtual) 23.02.2022 Date of Pronouncement 07.03.2022 For the Appellant Shri Palas Chattopadhyay, FCA For the Respondent Shri Manas Mondal, Addl. CIT ORDER Per Shri Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] dated 08.11.2021 for the assessment year 2014-15. 2. The assessee has challenged the order of Ld. CIT(A) on the ground that the same being the ex-parte order passed without hearing the assessee and thereby causing miscarriage of principles of natural justice. 3. At the outset, the Counsel of the assessee submitted before the Bench that the Ld. CIT(A) has passed an ex-parte order without considering the merits of the case thereby violating the principles of natural justice and fair play. The Ld. A.R. submitted before the Bench that the Ld. CIT(A) has fixed the hearings of appeal four times on 21.02.2021, 01.03.2021, 28.07.2021 and 22.10.2021. The Ld. A.R submitted before the Bench the Ld. CIT(A) sent the notices of hearing on [e-mail] which is an e-mail of ex-accountant of the assessee and he did not inform the date of hearing to the assessee. The last notice was served on the tax consultant of the assessee Shri Palash Chattapadhyay and he duly informed the assessee about the date of hearing 2 ITA No. 547/Kol/2021 AY: 2014-15 Golam Aspia on 22.10.2021. The assessee requested the ld CIT(A) to adjourn the date of hearing from 22.10.2021 to 5.11.20211 which unfortunately happened to be Diwali festivals. It was submitted before the bench that the Counsel of the assessee wanted to upload the submissions through e-portal on 8.11.2021 but the Ld. CIT(A) has closed the e- portal thereby depriving the assessee of opportunity of being heard. The Ld. Counsel prayed before the Bench that it is trite law if technicalities are pitted against the substantial justice then the substantial justice should be preferred over the technicalities as the assessee should not be denied the right of being heard before passing the appellate order when he is an aggrieved party by the order of AO. The Ld. A.R. prayed that the assessee may kindly give one more opportunity to present his case before the Ld. CIT(A) by restoring the appeal to the file of the Ld. CIT(A) so that the same could be decided on merits afresh. The Ld. D.R. on the other hand, argued that despite four opportunities given to the assessee no one turned up and the Ld. CIT(A) has to pass the appellate order ex-parte. 4. After hearing both the parties and perusing the records carefully, we note that though the assessee could not appear on all the first three dates due to service of notice to ex-tax accountant of the assessee who did not appear himself nor informed the assessee about the dates of hearings given by the ld CIT(A). On fourth date of hearing the assessee got to know about the date of hearing through his counsel as the notice was served on him. The assessee requested the Ld. CIT(A) to fix the case on 5.11.2021 which happened to be the Diwali Festivals and even on the 4 th date of hearing the appeal remained unattended by the assessee. Thereafter the Ld. CIT(A) passed the ex-parte without considering the merits. Under these circumstances the ends of justice would be met if the assessee is given one more opportunity to present his case on merits before the first appellate authority. Accordingly, we set aside the appeal to the file of the Ld. CIT(A) with the direction to decide the same afresh after affording a reasonable opportunity of hearing to the assessee. 3 ITA No. 547/Kol/2021 AY: 2014-15 Golam Aspia 5. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 7 th March, 2022 Sd/- Sd/- (Sonjoy Sarma) (Rajesh Kumar) Judicial Member Accountant Member Dated: 7 th March, 2022 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- Golam Aspia, Spandan Complex, G.T.Road, Burdwan-713101. 2. Respondent – ITO, Ward-1(4), Burdwan 3. The CIT(A)-National Faceless Appeal Centre (NFAC) 4. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata 4 ITA No. 547/Kol/2021 AY: 2014-15 Golam Aspia 1. Date of Dictation.............................................. 2. Date on which the typed order is placed before the dictating Member and other Member..................................................... 3. Date of which the order came back to Sr. PS.......................................... 4. Date of which the file goes to the O.S....................................... 5. Date of dispatch of the order.............................................