Bengal Intelligent Parks Pvt. Ltd., Kolkata V. D.C.I.T., Circle - 2(1), Kolkata, Kolkata

ITA 568/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7273 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 02-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Set aside

Judgement Text

1 IT A NO . 5 68 / KOL /201 8 BENGAL INTELLIGENT PARKS PVT. LTD . , AY - 20 12 - 13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA () . . , . , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, AM ] I.T.A. NO. 5 68 /KOL/201 8 ASSESSMENT YEAR: 20 12 - 13 BENGAL INTELLIGENT PARKS PVT. LTD. (PAN: AACCB0276E) VS. DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - 2 ( 1 ) , KOLKATA. APP ELLANT RESPONDENT DATE OF HEARING 1 8 .0 9 .201 9 DATE OF PRONOUNCEMENT 31 . 10 .201 9 FOR THE APP ELLANT SHRI A. K. TIBREWAL, FCA FOR THE RESPONDENT SHRI SUPRIYO PAL, JCIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAIN ST THE ORDER OF THE LD. C IT(A) - 1 , KOLKATA DATED 2 1 . 0 2 .201 8 FOR AY 20 12 - 13 . 2. THOUGH THE ASSESSEE HAS RAISED AS MANY AS SIX GROUNDS OF APPEAL BUT THE FIRST AND FOREMOST ISSUE IS AGAINST THE ACTION OF THE LD. CIT(A) IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT ALLOWING PROPER AND REASONABLE OPPORTUNITY OF HEARING THUS VIOLATING T HE PRINCIPLES OF NATURAL JUSTICE. 3. AT THE OUTSET ITSELF, THE LD. AR OF THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER EX PARTE WITHOUT GOING INTO MERITS OF THE CASE . ACCORDING TO HIM, THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER AFTER ISSUING FOUR NOTICES DATED 16 . 1 1.201 7 , 21 . 11 .201 7 , 1 9 .0 1 .2018 AND FINALLY ON 2 0 .0 2 .2018. HE ALSO SUBMITTED THAT DUE TO THE REASONS BEYOND ITS CONTROL NO DOUBT, THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) BUT PROMPTLY APPLIED FOR ADJOURNMENT BY FILING ADJOURNMENT APPLICATION S CITING REASONS FOR SEEKING SO. ACCORDING TO THE LD. AR , THE LD. CIT(A)S POWER IS COTERMINOUS AS THAT OF THE AO. THEREFORE, THE LD. CIT(A) BEING THE FIRST APPELLATE AUTHORITY IS EXPECTED WHILE ADJUDICATING AN APPEAL OF AN ASSESSEE SHOULD CALL FOR RECORDS FROM THE AO AND DISPOSE OF THE APPEAL ON MERIT EVEN IF THE ASSESSEE DID NOT APPEAR BEFORE HIM. FURTHER, IT WAS ALSO 2 IT A NO . 5 68 / KOL /201 8 BENGAL INTELLIGENT PARKS PVT. LTD . , AY - 20 12 - 13 POINTED OUT THAT WRITTEN SUBMISSION WAS IN FACT FILED ON 30.01.2018 BU T THE LD. CIT(A) DID NOT BOTHER TO LOOK INTO THE SAME AND DECIDED THE CASE EX PARTE WITHOUT GOING INTO MERITS OF THE CASE. IN OTHER WORDS, THE LD. CIT(A) WA S NOT JUSTIFIED IN DISMISSING THE APPEAL FOR NON PROSECUTION. IN THE LIGHT OF THE AFORESAID DISCUS SION, THE LD. COUNSEL FOR THE ASSESSEE URGED US TO GIVE ONE MORE OPPORTUNITY SO THAT ASSESSEE IS ABLE TO PRESENT ITS CASE BEFORE THE LD. CIT(A). PER CONTRA, T HE LD. DR VEHEMENTLY OPPOSING THE PLEA OF THE LD. AR, POINTED OUT THAT ASSESSEE DESPITE NOTICES PURPOSELY FAILED TO APPEAR BEFORE THE LD. CIT(A) AND SO CANNOT TAKE ADVANTAGE OF HIS OWN OMISSIONS AND THE LD. DR DOES NOT WANT US TO INTERFERE IN THE IMPUGNED ORDER ON THIS GROUND . 4. AFTER HEARING THE RIVAL SUBMISSIONS, IT IS NOTED THAT THE LD. CIT(A) HAS CONFIRMED THE ACTION OF AO BY AN EX PARTE ORDER , WHICH WE FOUND IT TO BE A CRYPTIC ORDER. HOWEVER, DURING THE HEARING BEFORE US, THE LD. AR UNDERTAKES THAT IF AN OPPORTUNITY IS AFFORDED, THE ASSESSEE IS READY TO DILIGENTLY APPEAR BEFORE THE LD. CIT(A) . IN THE AFORESAID CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT BY GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL BEFORE THE LD. CIT(A) MAY NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY MANNER . AND I T HAS TO BE KEPT IN MIND TH AT ASSESSEES RIGHT TO APPEAL BEFORE LD. CIT(A) IS A STATUTORY RIGHT AND THE LD. CIT(A) IS BOUND BY LAW TO DISCHARGE THE APPELLATE JURISDICTION BY ADJUDICAT ING THE ISSUE BOTH IN RESPECT OF FACT AND LAW IN ACCORDANCE TO LAW. WHILE DISCHARGING THIS APPELLAT E JURISDICTION , THE ASSESSEE/LD. AR NEEDS TO BE HEARD OR THE WRITTEN SUBMISSION AND PAPER BOOK NEED TO BE CONSIDERED BEFORE PASSING THE APPELLATE ORDER WHICH IDEALLY SHOULD BE SPEAKING ORDER. THEREFORE, WE SET ASIDE THE ORDER OF THE FIRST APPELLATE AUTHO RITY AND REMAND THE MATTER BACK TO THE FILE OF LD. CIT(A) TO ADJUDICATE THE APPEAL AFRESH IN ACCORDANCE TO LAW, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE IS DIRECTED TO DILIGENTLY PARTICIPATE IN THE APPELLATE PR OCEEDINGS. 6 . IN THE RESULT, THE AP PEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE . ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 OCTOBER , 2019. SD/ - SD/ - ( DR. A. L. SAINI ) ( ABY. T. VARKEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 OCTOBER , 2019 JD.(SR.P.S.) 3 IT A NO . 5 68 / KOL /201 8 BENGAL INTELLIGENT PARKS PVT. LTD . , AY - 20 12 - 13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT BENGAL INTELLIGENT PARKS PVT. LTD., BLDG. BETA, GR. FLOOR, BENGAL INTELLIGENT PARK BLOCK EP & GP, SALT LAKE ELECTRONICS COMPLEX, SECTOR - V, SALT LAKE CITY, KOLKATA - 700 091. 2 RESPONDENT D CIT, CIRCLE - 2 ( 1 ) , KOLKATA. 3. 4. CIT (A) - 1 , KOLKATA CIT - , , KOLKATA . 5 . DR, ITAT, KOLKATA. (SENT THROUGH E - MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR