Sri Soumen Paul, Kolkata V. CIT, (A) XXXII, KOLKATA, Kolkata

ITA 552/KOL/2014

• Counselvise Citation: 55223514 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARISES FROM
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 143(3); 133A; 133(6)

Judgement Text

I.T.A. NO . 552 / KOL ./20 1 4 ASSESSMENT YEAR: 200 6 - 200 7 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 552 / KOL / 20 1 4 ASSESSMENT YEAR : 200 6 - 20 0 7 SHRI SOUMEN PAUL,............. .. ................ ........ . APPELLANT KACHARIPARA RO AD, HABRA, DIST. NORTH 24 - PARGANAS, PIN - 743 263 [PAN : A FWPP 1255 P ] - VS. - INCOME TAX OFFICER , ............................... . ...... ..... . RESPONDENT WARD - 50(2), KOLKATA, UTTARAPAN BUILDING, 2 ND FLOOR, MANICKTALA CIVIC CENTRE, ULTADANGA, KOLKATA - 700 05 4 APPEARANCES BY: SHRI D.K. BANDYOPADHYAY, C.A., FOR THE ASSESSEE S H RI SUBHENDU DUTTA , JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JU LY 27 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 30 , 201 5 O R D E R THIS APPEAL , FILED BY THE ASSESSE E, ARISES FROM THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXXII, KOLKATA IN APPEAL NO. 211/XXXII/09 - 10/50(2)/KOL DATED 13 . 1 2 .20 1 3 FOR THE ASSESSMENT YEAR 200 6 - 0 7, WHICH WAS PASSED AGAINST THE ORDER OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT B Y ITO, WARD - 50(2), KOLKATA , ON 30.12.2008 . 2. THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT ON 30.12.2008 DETERMINING THE TAXABLE INCOME OF THE ASSESSEE AT I.T.A. NO . 552 / KOL ./20 1 4 ASSESSMENT YEAR: 200 6 - 200 7 PAGE 2 OF 5 RS.13,25,160/ - AND THE SAID ORDER WAS SERVED ON THE ASSESSEE ON 31.12.2008. 3. THE ONL Y ISSUE IN THIS APPEAL FILED BY THE ASSESSEE TO BE ADJUDICATED (I) WHETHER THE LD. CIT(APPEALS) IS RIGHT IN NOT CONDONING THE DELAY IN FILING THE APPEAL; AND (II) WHETHER THE LD. CIT(APPEALS) IS RIGHT IN ADJUDICATING THE ISSUE ON MERITS IN THE EVENT OF NOT CONDONING THE DELAY IN FILING THE APPEAL. 4 . BRIEF FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING CLOTH. THE ASSESSEE CHALLENGED THE ORDER OF ASSESSMENT PASSED BY ITO , WARD - 50(2), KOLKATA BEFORE THE CIT(AP PEALS). THE APPEAL WAS FILED BEFORE THE LD. CIT(APPEALS) WITH A DELAY OF 13 MONTHS. IT WAS PLEADED BEFORE THE LD. CIT(APPEALS) THAT THE ASSESSEE WAS FULLY DEPENDENT ON HIS ACCOUNTANT , MR. GAUTAM MAJUMDER , WITH REGARD TO THE FINANCIAL RECORDS OF THE ASSESSE E, WHO HAD FALLEN SICK DUE TO TUBERC U LOSIS. ADMITTEDLY THE ACCOUNTANT OF THE ASSESSEE WAS NOT ABLE TO ATTEND O FFICE FOR PERFORMING HIS ROUTINE DUTIES FROM 18.12.2008 TO 25.01.2010 , WHICH IS ALSO SUPPORTED BY A MEDICAL CERTIFICATE ISSUED BY THE REGISTERED M EDICAL PRACTITIONER. IN ADDITION TO THIS, AN AFFIDAVIT FROM THE ACCOUNTANT MR. GAUTAM MAJUMDER , DULY NOTARISED , WAS ALSO FILED BEFORE THE LD. CIT(APPEALS) EXPLAINING THE REASONS FOR DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(APPEALS). THE REASONS EXPLAI NED BY THE ASSESSEE DID NOT HOLD W ATER IN THE MINDS OF THE LD. CIT(APPEALS) AND ACCORDINGLY THE LD. CIT(APPEALS) DISMISSED THE APPEAL BY NOT CONDONING THE DELAY. THE LD. CIT(APPEALS) HAVING DECIDED TO DISMISS THE APPEAL OF THE ASSESSEE ON LIMITATION ALSO P ROCEEDED TO ADJUDICATE THE ISSUES ON MERIT S AND DISMISSED THE GROUNDS RAISED BY THE ASSESSEE ON THE PRETEXT THAT NO FURTHER EVIDENCES WERE PRODUCED BY THE ASSES S EE IN THE APPELLATE PROCEEDINGS. AGAINST THIS ORDER, THE ASSESSEE HAS CHALLENGED BY PREFERRING THE APPEAL BEFORE ME AND HAS RAISED THE FOLLOWING GROUNDS: - 1. FOR THAT THE LD. CIT (A) - XXXII, KOLKATA HAS ERRED IN LAW AND IN FACT BY REJECTING THE C ONDONATION P ETITION FOR FILING OF I.T.A. NO . 552 / KOL ./20 1 4 ASSESSMENT YEAR: 200 6 - 200 7 PAGE 3 OF 5 THE APPEAL EVEN THOUGH THE ASSESSEE HAS FILED A C ONDONATION P ETITION E XPLAINING THE REASONS FOR DELAY AS WELL AS AN AFFIDAVIT ALONG WITH THE DOCTOR'S CERTIFICATE AND AS SUCH, WITHOUT APPRECIATING THE BONAFIDITY OF THE A SSESSEE FOR SUCH UN- INTENDED DELAY IS NOTHING BUT DENIAL OF NATURAL JUSTICE. 2. FOR THAT THE LD. CIT (A ) - XXXII, KOLKATA HAS ALSO IGNORED THE CORRECT FACT FOR CONDONATION OF DELAY FOLLOWED BY AFFIDAVIT AND MEDICAL CERTIFICATE BY REGISTERED MEDICAL PRACTITIONERS ALONG WITH A FORWARDING LETTER DTD. 24 - 0 4 - 2012 EXPLAINING ORDER OF CONDONATION PETITION BY THE HO N'BLE ITAT 'A' BENCH, KOLKATA IN ITA NO. 1426 / KOL / 2003 DTD. 25 - 01 - 2005 FOLLOWED BY THE ORDER OF THE A PEX C OURT REPORTED IN 167 ITR 471 WHEREBY THE DELAY FOR AS MANY AS THREE YEARS WAS CONDONED. 3. THAT FOR ALL THE REASONS AS WELL AS CONSIDERING THE BONA FIDITY OF THE A PPELLANT BY WAY OF AFFIDAVIT FOLLOWED BY THE MEDICAL CERTIFICATE CLAIMING THE DELAY IN FILING OF THIS APPEAL WAS UN - INTENTIONAL, THE C ONDONATION P ETITION MAY ACCORDINGLY BE PRAYED TO BE CONDONED BY THE HON'BLE MEMBERS IN THE INTEREST OF JUST ICE. 4. THAT THE LD. CIT (A) - XXXII, KOLKATA HAS ARBITRARILY AND WITHOUT LOOKING INTO THE FACTS RELIED UPON BY HIM WITH REGARD TO THE STATEMENT RECORDED U / S. 133A OF THE I. T. ACT, 1961 DTD. 09 - 12 - 2005 WHILE FRAMING HIS APPELLATE ORDER IN HASTE THAT THE A.O. AT PAGE 1 OF THE ASSESSMENT ORDER, STATED 'PURCHASES HAVE BEEN VERIFIED BY INVOKING SEC. 133(6) OF THE ACT' THEREFORE, THE ORDER OF THE LD. CIT (A) - XXXII, KOLKATA CONFIRMING THE ADDITIONS ON ACCOUNT OF PURCHASES (BOGUS) MERELY ON THE BASIS OF STATEME NT RECORDED U/S. 133A WHICH HAS NO EVIDENTIARY VALUE FOR THE PURPOSE OF ASSESSMENT PROCEEDINGS AND/ OR APPELLATE PROCEEDINGS. 5. FOR THAT THE LD. CIT (A) - XXXII, KOLKATA HAS ALSO IGNORED THE CORRECT FACT PLACED BEFORE HIM BY THE APPELLANT BY SUBMITTING C OPY OF LETTER DTD. 09 - 10 - 2013 ADMITTING THE FACT THAT THE PURCHASE BILLS, CHALLANS, ETC. HAVE BEEN IMPOUNDED DURING SURVEY AND NO OPPORTUNITY HAS BEEN GRANTED BY THE LD. CIT (A) - XXXII, KOLKATA TO EXAMINE AND VERIFY ALL THE DETAILS FILED BY THE APPELLANT. 6. THAT THE LD. CIT (A) - XXXII, KOLKATA HAS EXCEEDED HIS JURISDICTION BY NOT ONLY REJECTING THE CONDONATION PETITION ON SOME FLIMSY GROUNDS BUT ALSO DISPOSED OF THE APPEAL OF THE APPELLANT BY DISMISSING THE GROUNDS IN AN ARBITRARY MANNER WHICH REQUIRES I NTERVENTION BY THE HON'BLE MEMBERS OF THE ITAT FOR PROPER REDRESSAL OF THE GRIEVANCES OF THE APPELLANT. 5 . SHRI D.K. BANDYOPADHYAY, C.A., APPEARED ON BEHALF OF THE ASSESSEE AND SHRI SUBHENDU D UTTA, JCIT, APPEARED ON BEHALF OF THE REVENUE. I.T.A. NO . 552 / KOL ./20 1 4 ASSESSMENT YEAR: 200 6 - 200 7 PAGE 4 OF 5 6 . AT THE TIME OF HEARING, LD. A.R. FOR THE ASSESSEE PLEADED BEFORE ME THAT THERE WAS A SURVEY UNDER SECTION 133A OF THE ACT CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE. DURING SURVEY, P URCHASE BILLS ALONG WITH OTHER DOCUMENTS WERE DULY IMPOUNDED BY THE SURVEY TEA M. T HE ASSESSEE WAS NOT CONVERSANT WITH THE FINANCIAL AFFAIRS OF HIS BUSINESS AND REGULAT ORY PROCEDURE S THEREON, AS HE HAD TOTALLY DEPENDE D ON HIS ACCOUNTANT MR. GAUTAM MAJUMDAR. LD. A.R. FURTHER ARGUED THAT THE DELAY IN FILING THE APPEAL BEFORE THE LD. CI T(APPEALS) WAS DUE TO THE VALID REASONS AND BEYOND CONTROL OF THE ASSESSEE AS THE ACCOUNTANT OF THE ASSESSEE MR. GAUTAM MAJUMDAR HAD FALLEN SICK FROM 18.12.2008 TO 25.01.2010 , WHICH IS ALSO SUPPORTED BY A MEDICAL CERTIFICATE ISSUED BY THE MEDICAL PRACTITIO NER AND HENCE REQUESTED FOR TAKING A LIBERAL VIEW IN THIS REGARD. LD. A.R. ALSO BROUGHT TO MY NOTICE THE LETTER DATED 09.10.2013 WHICH HAS BEEN SENT BY SPEED POST ADDRESSED BY THE ASSESSEE TO THE INCOME TAX OFFICER, WARD - 50(2), KOLKATA SEEKING FOR COPIES O F PURCHASE BILLS AND CHALLANS, WHICH WERE IMPOUNDED BY THE SURVEY TEAM FOR BETTER REPRESENTATION OF THE APPEAL BEFORE THE LD. CIT(APPEALS) ON MERITS . THIS REQUEST DID NOT HEED IN FAVOUR OF THE ASSESSEE AND ULTIMATELY ASSESSEE COULD NOT EFFECTIVELY REPRESEN T WITH RELEVANT MATERIALS BEFORE THE LD. CIT(APPEALS). 7 . IN RESPONSE TO THIS, SHRI SUBHENDU DUTTA, JCIT, D.R., VEHEMENTLY SUPPORTED THE ORDER S OF TAX AUTHORITIES BELOW . 8 . I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDER ED THE SAME ALONG WITH T HE ORDERS OF TAX AUTHORITIES BELOW. FROM THE RECORD, I FIND THAT THE LD. CIT(APPEALS) HAD DISMISSED THE APPEAL OF ASSESSEE ON LIMITATION . THE LD. CIT(APPEALS) HAVING DECIDED TO DISMISS THE APPEAL ON LIMITATION OUGHT TO HAVE NOT PROCEEDED FURTHER TO ADJUDIC ATE THE ISSUES ON MERIT S, AS THE APPEAL PER SE IS NOT ADMITTED BEFORE THE LD. CIT(APPEALS). I, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES , SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THIS ISSUE TO THE FILE OF THE I.T.A. NO . 552 / KOL ./20 1 4 ASSESSMENT YEAR: 200 6 - 200 7 PAGE 5 OF 5 CIT(AP PEALS) WITH THE DIRECTION TO CONDONE THE DELAY AS REASONABLE CAUSE WAS ADDUCED BY THE ASSESSEE AND I AM ALSO CONVINCED THAT THE DELAY IN FILING THE APPEAL IS DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. THE LD. CIT(APPEALS) IS ALSO DIRECTED TO TA KE A CONSIDERED VIEW AFRESH IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISION RENDERED ON MERITS OF THE CASE. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD SO THAT THE ASSESSEE CAN REPLY ALL THE QUERIES WHATEVE R THE LD. CIT(APPEALS) MAY DESIRE. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 30 TH , 201 5 . SD/ - MAHAVIR SINGH ( JUDICIAL MEMBER) KOLKATA, THE 30 TH D AY OF JU LY , 201 5 COPIES TO : (1) SHRI SOUMEN PAUL, C/O. D.K. BANDYOPADHYAY & CO., CHARTERED ACCOUNTA N TS, 87, LENIN SARANI, 2 ND FLOOR, KOLKATA - 700 013 (2) INCOME TAX OFFICER, WARD - 50(2), KOLKATA, UTTARAPAN BUILDING, 2 ND FLOOR, MANICKTALA CIVIC CENTRE, ULTADANGA, KOLKATA - 700 054 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .