Moon Raker Construction Pvt, Kolkata V. ITO, Ward 3(1), Kolkata, Kolkata

ITA 558/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1431 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: PRASAD NATH KESARIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA [BEFORE S H RI N. V. VASUDEVAN , HONBLE JUDICIAL M EMBER & SHRI WASEEM AHMED, HONBLE ACCOUNTANT MEMBER ] I.T.A. NO. 558 / KOL/201 7 ASSESSMENT YEAR: 20 1 2 - 13 MOON RAKER CONSTRUCTION PVT. LTD.. . ... APPELLANT 11, CROOKED LANE KOLKATA 700 069 [PAN : AABCM 9001 H ] INCOME TAX OFFICER, WARD - 3(1), KOLKATA. . ... RESPONDENT P - 7, CHOWRINGHEE SQUARE KOLKATA 700 09 APPEARANCES BY: SHRI PRASAD NATH KESARIA , FCA , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI S. DASGUPTA , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 2 0 TH , 201 8 DATE OF PRONOUNCING THE ORDER : 1 ST MARCH , 201 8 O R D E R PER N.V. VASUDEVAN : - THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 16 /01/201 7 , OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1 , KOLKATA (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT ), RELATING TO THE ASSESSMENT YEAR 201 2 - 13 . 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF TRADING AND MAKING INVESTMENT. FOR THE ASSESSMENT YEAR 2012 - 13, THE ASSESSEE FILED ITS RETURN OF INCOME DISCLOSING TOTAL INCOME RS. 21,130/ - . AN ORDER OF ASSESSMENT DT. 21/03 /2015, WAS PASSED BY THE ASSESSING OFFICER U/S 144 OF THE ACT (BEST JUDGEMENT ASSESSMENT). THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT A SUM OF RS.2,34,60,719/ - , IN THE FOLLOWING MANNER: - TOTAL INCOME AS PER RETURN :RS. 21,130/ - ADD: AS PER DISCUSSION ABOVE : DISALLOWANCE :1 : RS.2,33,89,643/ - DISALLOWANCE : 2 : RS.49,946/ - : RS.2,34,59,589/ - ASSESSED INCOME : RS. 2,34,60,719/ - 2 I.T.A. NO. 558/KOL/2017 ASSESSMENT YEAR: 2012 - 13 MOON RAKER CONSTRUCTION PVT. LTD 3. AGGRIEVED BY THE ADDITIONS MADE BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE CASE BEFORE THE LD. CIT(A) WAS FIXED ON 27/12/2016. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE THE CASE WAS AGAIN FIXED ON 09/01/2017. ON THAT DAY THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED A LETTER REQUESTING FOR ADJOURNMENT. THE CASE WAS ADJOURNED TO 13/01/2017. IT APPEARS THAT ON 13/01/2017, NONE APPEARED FOR THE ASSESSEE NOR ANY ADJOURNMENT LETTER WAS FILED. UNDER THESE CIRCU MSTANCES, THE LD. CIT(A), PROCEEDED TO DECIDE THE APPEAL OF THE ASSESSEE EX - PARTE. HE FORMED TO GROUNDS TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER AND ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSEE. 3.1. AGGRIEVED BY THE ORDER OF THE LD. CIT( A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT ON 09/01/2017, THE REQUEST WAS MADE FOR ADJOURNING THE CASE TO FIRST WEEK OF MARCH, 2017, AS THE ASSESSEES ACCOUNTANT WOULD BE OUT OF STATION. IT APPEARS THAT THIS REQUEST WAS NOT C ONSIDERED AND THE CASE WAS REFIXED FOR HEARING ON 13/01/2017. SINCE SHRI SANJAY JAIN, CA, A/R, OF THE ASSESSEE WAS OUT OF STATION ON 13/01/2017, A REQUEST WAS MADE TO ADJOURN THE HEARING AND IT WAS INFORMED THAT HE COULD COME AT A LATER DATE. IT APPEARS TH AT SHRI SANJAY JAIN, CA, ATTENDED ON 16/01/2017. BUT BY THAT TIME THE ORDER WAS ALREADY PASSED BY THE LD. CIT(A). 4.1. AFTER CONSIDERING THE CIRCUMSTANCES, UNDER WHICH THE APPEAL WAS DECIDED BY THE LD. CIT(A), WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT BEEN AFFORDED PROPER OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A). THERE HAS BEEN A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE LD. CIT(A), FOR FRESH CONSIDERATION OF T HE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS AFTER AFFORDING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 I.T.A. NO. 558/KOL/2017 ASSESSMENT YEAR: 2012 - 13 MOON RAKER CONSTRUCTION PVT. LTD 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 1 ST DAY OF MARCH , 201 8 . SD/ - SD/ - [ WASEEM AHMED ] [N.V. VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.03. 201 8 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. MOON RAKER CONSTRUCTION PVT. LTD 11, CROOKED LANE KOLKATA 700 069 2. INCOME TAX OFFICER, WARD - 3(1), KOLKATA P - 7, CHOWRINGHEE SQUARE KOLKATA 700 09 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES