Vinayak Oil & Fats (P) Ltd., Kolkata V. DCIT, Central Circle - XXVII, Kolkata, Kolkata

ITA 552/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83032 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2011
• Court: TRIBUNAL
• Department Lawyers: AJOY KR SINGH
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NOS.514 & 552/KOL/2011 ASSESSMENT YEARS : 2007-08 & 2008-09 ( APPELLANT ) - (RESPONDENT) VINAYAK OIL & FATS (P)LTD. VS D.C.I.T., CENTRAL CIRCLE-XXVII, KOLKATA KOLKATA (PAN:AAACV 9790 K) ITA NOS.874 TO 877/KOL./2010 ASSESSMENT YEARS : 2001-02 TO 2004-05 ( APPELLANT ) - (RESPONDENT) D.C.I.T., CENTRAL CIRCLE-XXVII, VINAYAK OIL & FA TS (P)LTD., KOLKATA -VERSUS- KOLKATA (PAN: AAACV 9790 K) FOR THE ASSESSEE SHRI A.K.TIBREWAL, FCA FOR THE RESPONDENT: SHRI AJOY KR.SINGH,CIT(DR) DATE OF HEARING : 05.08.2014 DATE OF PRONOUNCEMENT : 07.08.2014. / ORDER PER BENCH THESE APPEALS ARE FILED BY THE ASSESSEE AND THE REV ENUE AGAINST THE ORDERS OF THE LD. CIT(A)-CENTRAL-II, KOLKATA FOR RESPECTIVE A SSESSMENT YEARS. SINCE THE ISSUE INVOLVED IS COMMON ALL THESE APPEALS ARE DISPOSED O FF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. ITA NOS.874 & 877/KOL/2010 (REVENUES APPEALS) : THESE ARE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A) FO R A.YRS.2001-02 TO 2004-05. FOR THESE YEARS THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB OF THE ACT WHICH WAS DENIED BY THE AO. THE LD. CIT(A) HAS ALLOWED THE SAME IN H IS APPELLATE ORDER. ITA NOS. 552 & 514/KOL/2011 ITA NOS .874TO 877/KOL/2010 M/S.VINAYAK OIL & FATS (P) LTD. A.YRS.2007-08&2008-09 & 2001-02 TO 20 04-05 2 3. ITA NO.514/KOL/2011 IS FOR A.YR.2007-08 AND ITA NO.552/KOL/2011 IS FOR A.YR.2008-09. THESE ARE APPEALS FILED BY THE ASSESS EE AGAINST THE ORDER OF LD. CIT(A). IN THESE APPEALS THE LD. CIT(A) HAS AFFIRMED THE AC TION OF AO IN DENYING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB OF THE IT ACT. 4. APART FROM THE ABOVE THE LD. DR HAS TAKEN AN ADD ITIONAL GROUND ON BEHALF OF THE REVENUE THAT THE LD. CIT(A) BY NOT SENDING NOTI CE IN FORM NO.ITNS 51 TO THE AO HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. THE LD. DR HAS CONTENDED THAT THE ABOVE GROUND IS A LEGAL GROUND. U/S 250 OF THE IT ACT THE LD. CIT(A) IS BOUND TO GIVE NOTICE OF HEARING TO THE AO AT THE TIME OF HEARING OF THE APPEAL. HE CONTENDED THAT THIS IS A LEGAL GROUND AND HAS TO BE ADMITTED IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NTPC VS CIT 229 ITR 383. THE LD. COU NSEL OF THE ASSESSEE OBJECTED TO THE ADMISSION OF THE SAID ADDITIONAL GROUND. 5. UPON CAREFUL CONSIDERATION WE NOTE THAT THE ABOV E GROUND IS A LEGAL GROUND AND THE SAME HAS TO BE ADMITTED AS PER THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NTPC VS CIT (SUPRA). SINCE THE ADDITIONAL GROUND GOES TO THE JURISDICTION OF THE LD. CIT(A) WE DEEM IT PROPER TO ADJUDICATE THE SAME FIR ST. 6. WE NOTE THAT AS CONTENDED BY THE LD. DR AS PER T HE PROVISION OF SECTION 250 OF THE IT ACT THE LD. CIT(A) IS BOUND TO SERVE NOTICE OF HEARING TO THE AO ALSO IN ITNS 51. NO SUCH NOTICE WAS SERVED FOR A.YRS.2001-02 TO 2004-05 AND ALSO FOR A.YR.2007- 08. IN THIS REGARD THE LD. DR ALSO PRODUCED THE CON CERNED FILE OF THE LD. CIT(A). THE LD. DR ALSO REFERRED TO THE DECISION OF THIS TRIBUN AL IN ITA NO.1601/KOL/2011 AND OTHERS IN THE CASE OF DCIT VS M/S.SENBO ENGINEERIN G LTD.,. IN THIS CASE VIDE ORDER DATED 25.07.2014 THE TRIBUNAL HAD HELD THAT THE LD. CIT(A) BY NOT SERVING NOTICE TO THE AO HAS VIOLATED THE PROVISION OF SUB-SECTION (1) AN D (2) OF SECTION 250 OF THE ACT AND THUS DENYING THE NATURAL JUSTICE OF THE REVENUE. TH EREFORE IT WAS HELD THAT ORDER PASSED BY THE LD. CIT(A) WAS IN VIOLATION OF PRINCI PLES OF NATURAL JUSTICE AND THEREFORE THE MATTER WAS SET ASIDE TO THE FILE OF THE LD. CIT (A) WITH THE DIRECTION TO GIVE AO PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AN D DECIDE THE ISSUE AFRESH IN ITA NOS. 552 & 514/KOL/2011 ITA NOS .874TO 877/KOL/2010 M/S.VINAYAK OIL & FATS (P) LTD. A.YRS.2007-08&2008-09 & 2001-02 TO 20 04-05 3 ACCORDANCE WITH LAW. IN THIS REGARD THE FILE FOR TH E CONCERNED ASSESSMENT YEAR WAS ALSO BROUGHT ON RECORD FOR REFERENCE OF THE BENCH. THE L D. AR WAS ALSO GIVEN AN OPPORTUNITY TO EXAMINE THE SAME. IT IS CLEAR FROM T HE ABOVE EXAMINATION THAT NO NOTICE WAS SERVED TO THE AO IN ITNS 51. WE NOTE THAT SECTI ON 250 OF THE IT ACT DEALS WITH THE PROCEDURES FOR DISPOSING OF THE APPEAL. SUB-SEC TION (1) OF SECTION 250 OF THE ACT HAS LAID DOWN THAT THE COMMISSIONER OF APPEAL FIXES THE DATE AND PLACE FOR HEARING OF THE ASSESSEE AND SHALL GIVE NOTICE OF THE SAME TO THE ASSESSEE AND TO THE AO AGAINST THE ORDER OF CIT(A). SUB-SECTION (2) OF SECTION 250 OF THE ACT THEREIN STATES THAT THE AO HAS THE RIGHT TO BE HEARD EITHER IN PERSON OR BY AR ON THE DATE FIXED FOR HEARING. IT IS A SETTLED LAW THAT THE PROCEEDINGS BEFORE CIT(A) IS A QUASI JUDICIAL PROCEEDING AND THEREFORE HE IS UNDER AN OBLIGATION TO PASS AN ORDE R IN CONFORMITY WITH THE RULES OF NATURAL JUSTICE. ITNS 51 HAS BEEN PRESCRIBED FOR SE RVICING OF NOTICE OF HEARING TO THE AO. 7. IT IS EVIDENT FROM THE ABOVE THAT THE LD. CIT(A) HAS NOT GIVEN THE DESIRED NOTICE TO THE AO FOR HEARING. AYRS 2001-02 AND 2004-05 ARE THE INITIAL ASSESSMENT YEARS FOR THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT. IN VIEW OF THE FACT NOTED ABOVE THE LD. CIT(A) HAS VIOLATED THE PROVISION OF THE ACT REGARD ING THE NOTICE TO AO. THE ABOVE ORDERS OF THE LD. CIT(A) ARE NOT SUSTAINABLE. ACCOR DINGLY WE SET ASIDE THE ORDER OF THE LD. CIT(A) IN THESE YEARS. WE REMIT THE ISSUE TO TH E FILE OF LD. CIT(A). THE LD. CIT(A) SHALL CONSIDER THE ISSUE AFRESH AFTER GIVING PROPER NOTICE TO THE AO. 7.1. THE ASSESSEES APPEAL FOR A.YRS.2007-08 AND 20 08-09 ARE AGAINST THE ORDER OF LD.CIT(A) WHERE FOLLOWING THE ASSESSMENT ORDERS OF EARLIER YEARS THE CLAIM U/S 80IB OF THE ACT WAS DENIED TO THE ASSESSEE. WE NOTE THAT IN THE EARLIER PORTION WHILE DEALING THE REVENUES APPEAL WE HAVE NOTED THAT ASSESSEES CLAIM FOR DEDUCTION U/S 80IB OF THE ACT IS TO BE SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUE AFRESH AFTER GIVING THE PARTIES ADEQUATE OPPORTUNITY OF BEING HEARD. SINCE IN THE PRESENT ASSESSMENT YEARS (2007-08 & 2008-09) WHERE THE ASSESSEE IS IN APPEAL THE ADJUDICATION ON THE INITIAL YEARS HAS A DIRECT BEARING ON THE ISSUE UNDER DISPU TE IN THESE ASSESSMENT YEARS. SINCE THE ABOVE APPEALS HAVE ALREADY BEEN SET ASIDE TO TH E FILE OF THE LD. CIT(A) WE REMIT THE ITA NOS. 552 & 514/KOL/2011 ITA NOS .874TO 877/KOL/2010 M/S.VINAYAK OIL & FATS (P) LTD. A.YRS.2007-08&2008-09 & 2001-02 TO 20 04-05 4 ISSUE RAISED TO THE FILE OF LD.CIT(A) FOR A.YRS.200 7-08 AND 2008-09 ALSO. LD. CIT(A) SHALL ADJUDICATE THE SAME AFRESH AFTER GIVING THE P ARTIES PROPER OPPORTUNITY OF BEING HEARD AND ALSO TAKE INTO ACCOUNT THE ADJUDICATION F OR A.YRS.2001-02 AND 2004-05 AS ABOVE. 8. IN THE RESULT ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.08.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 07.08.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. VINAYAK OIL & FATS (P)LTD., 39, KALI KRISHNA TAGORE STREET, 5 TH FLOOR, KOLKATA- 700007. 2 D.C.I.T., CENTRAL CIRCLE-XXVII, KOLKATA 3 . CIT(A)-CENTRAL-II, KOLKATA 4. CIT KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES