M/s Astha Nursing Home, Nadia V. ACIT Circle Nadia, Nadia

ITA 59/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1206 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P DATTA SHRI
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 59 / KOL / 2017 ASSESSMENT YEAR :2010-11 M/S ASTHA NURSING HOME, A-9X/4, CA,A BLOCK, KALYANI,NADIA-741235 [ PAN NO.AAKFA 3492 N ] V/S . ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE- NADIA, KRISHNAGAR, NADIA, PIN-741101 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.P. DATTA, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 26-02-2018 /DATE OF PRONOUNCEMENT 28-03-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA DA TED 07.06.2016. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE, NADIA U/S 14 3(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VI DE HIS ORDER DATED 14.03.2013 FOR ASSESSMENT YEAR 2010-11. SHRI S.P. DATTA, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEEE, LD. DEPARTMENTAL REPRESENTA TIVE APPEARED ON BEHALF OF REVENUE. ITA NO.59/KOL/2017 A.Y. 2010- 11 M/S ASTHA NURSING HOME VS. ACIT, CIR, NADIA PAG E 2 2. AT THE OUTSET, LD. AR FOR THE ASSESSEE DRAW OUR ATTENTION THAT THE APPEAL IS BARRED BY LIMITATION FOR 99 DAYS. THE REA SON FOR THE DELAY WAS EXPLAINED AS UNDER : I. THAT THE BUSINESS OF ASSESSEE CEASED TO EXIST DU RING THAT PERIOD OF TIME FOR WHICH NO DELIVERY OF THE ORDER WAS MADE THROUGH POSTAL COMMUNICATION. II. SUBSEQUENTLY THE AUTHORIZED REPRESENTATIVE OF ASSESSEE OBTAINED THE ORDER THROUGH HAND DELIVERY FROM THE O FFICE OF LD. CIT(A). III. THAT THERE WAS ALSO SOME SERIOUS HEALTH ISSUE WITH THE ASSESSEE. AS A RESULT THE DELAY IN FILING THE APPEAL WITHIN T HE TIME OCCURRED. THE ASSESSEE IN SUPPORT OF HIS CLAIM ALSO FILED THE AFF IDAVIT WHICH IS PLACED ON RECORD. AS SUCH THE LD AR PRAYED FOR THE CONDONATIO N OF DELAY IN FILING THE APPEAL. THE LD. DR RAISED NO OBJECTION AND LEFT THE ISSUE AT THE DISCRETION OF THE BENCH. AFTER HEARING BOTH THE SIDES WE ARE OF T HE VIEW THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE A SSESSEE IN FILING THIS APPEAL. HENCE, WE CONDONE THE SAID DELAY AND PROCEED TO DIS POSE OF THIS APPEAL OF THE ASSESSEE ON MERIT. 3. AT THE OUTSET, IT WAS OBSERVED THAT LD. CIT(A) H AS PASSED EX PARTE ORDER ON THE GROUND THAT ASSESSEE FAILED TO APPEAR DESPIT E NOTICES FOR HEARING WERE ISSUED UPON ASSESSEE BUT RETURNED BACK AS UN-SERVED WITH THE REMARKS LEFT. THEREFORE, THE LD. CIT(A) WAS OF THE VIEW THAT ASSE SSEE IS NOT INTERESTED IN PERUSING THE APPEAL. THUS THE EX-PARTE ORDER WAS PA SSED. 4. WE HAVE HEARD THE ID. REPRESENTATIVES OF BOTH T HE PARTIES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE MA IN GRIEVANCE OF THE ASSESSEE IS THAT THERE WAS NO PROPER NOTICE OF THE HEARING SERVED ON THE ASSESSEE. HOWEVER, THE ID. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT THE NOTICES SENT TO THE ASSESSEE BY ID. CIT(A) WERE RET URNED 'UNSERVED' AND THE ITA NO.59/KOL/2017 A.Y. 2010- 11 M/S ASTHA NURSING HOME VS. ACIT, CIR, NADIA PAG E 3 ASSESSEE HAD NOT GIVEN ANY INTIMATION OF CHANGE OF ADDRESS. BE THAT AS IT MAY, WE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, SET ASIDE THE ORDERS OR THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE LD. CIT-A WITH A DIRECTION THAT HE WILL ADJUDICATE THE MATTER AFRESH AS PER PROVISI ONS OF LAW AND AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH E ASSESSEE WILL BE AT LIBERTY TO FILE SUCH EVIDENCE AS HE MAY CONSIDER NE CESSARY. HOWEVER, IF THE ASSESSEE FAILS TO COOPERATE THE LD. CIT-A, THEN HE WILL BE AT LIBERTY TO ADJUDICATE THE ISSUE ON THE BASIS OF THE MATERIAL A VAILABLE WITH HIM. 5. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28 /03/2018 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #- 28 / 03 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S ASTHA NURSING HOME, A-9X/4, CA,A BLO CK, KALYANI, PIN741235 2. /RESPONDENT-ACIT, CIRCLE, NADIA, KRISHNAGAR, PIN 74 1101 3. / 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO /,