S. N. Cold Storage (P) Ltd., Hooghly V. JCIT, R-2, HOOGHLY, Hooghly

ITA 622/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1036 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTTACHERJEE
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.622/KOL/2016 ASSESSMENT YEAR:2010-11 S.N.COLD STORAGE (P) LTD. HAMIR GACHI, BRAHMANPARA, CHANDANNAGAR, HOOGHLY-712405 [ PAN NO.AAECS 2700 A ] / V/S . JCIT, RANGE-2, HOOGHLY, GRAND TRANK ROAD, CHINSURAH, HOOGHLY, WEST BENGAL- 712 102 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 01-11-2017 /DATE OF PRONOUNCEMENT 10-11-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA DATED 19.01.2016. A SSESSMENT WAS FRAMED BY JCIT, RANGE-2, HOOGHLY U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.03.2013 FOR ASSE SSMENT YEAR 2010-11. SUBASH AGARWAAL, ADVOCATE, APPEARED ON BEHALF OF AS SESSEE AND SHRI ARINDM BHATTACHERJEE, LD. DEPARTMENTAL REPRESENTATIVE APPE ARED ON BEHALF OF REVENUE. 2. THE FIRST ISSUE RAISED BY ASSESSEE IS THAT LD CI T(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER WITHOUT PROVIDING REASON ABLE OPPORTUNITY OF BEING HEARD. 3. AT THE OUTSET IT WAS OBSERVED THAT THE REGISTRY OF ITAT HAS POINTED OUT THE DEFECT IN THE APPEAL FILED BY THE ASSESSEE ON THE G ROUND THAT THE APPEAL HAS BEEN FILED WITHOUT MAKING THE PAYMENT OF REQUISITE AMOUNT. AS PER THE REGISTRY THERE WAS SHORT ITA NO.622/KOL/2016 A.Y. 2010 -11 S.N.COLD STORAGE (P) LTD. VS. JCIT, RN-2 , HLG. PAGE 2 PAYMENT OF RS. 6249.00 ONLY. THE ASSESSEE WAS LIABL E TO PAY AN AMOUNT OF 1% OF THE DISPUTED AMOUNT I.E. 6749.00 BEING 1% OF 6,74,934.0 0 AS PER THE PROVISIONS OF SECTION 253(6)(C) OF THE ACT WHEREAS THE ASSESSEE HAS PAID THE FEE RS. 500 ONLY. THUS THERE WAS SHORT PAYMENT OF RS. 6249.00 ONLY. 4. IN THIS REGARD THE LD AR SUBMITTED THAT IN THE I NSTANT CASE THE DISPUTED AMOUNT REPRESENTS THE LOSS FOR RS. 6,74,934.00 ONLY. THUS AS PER THE LD AR, THE ASSESSEE IS LIABLE TO PAY FEE OF RS.500 IN CASE THE DISPUTED AM OUNT REPRESENTS THE LOSS IN TERMS OF THE PROVISIONS OF SECTION 253(6)(D) OF THE ACT. IN THIS CONNECTION THE LD AR RELIED ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF GILBS COMPUTER LIMITED V. ITAT, ACIT, UNION OF INDIA - WRIT PETITION NUMBER 1021 OF 2009. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW: - CONSIDERING THE ENTIRE SCHEME OF THE ACT AND TH E HISTORY OF THE PURPOSE OF THE AMENDMENT, WE HAVE NO DIFFICULTY IN HOLDING THAT EI THER CLAUSE (A) OR (D) OF SUB- SECTION (6) OF SECTION 253 WOULD BE ATTRACTED BUT C ONSIDERING THE EARLIER DISCUSSION REGARDING THAT LOSS WOULD ALSO BE COVERED BY THE EX PRESSION TOTAL INCOME , WE WOULD HOLD THAT IN SUCH A CASE IT WOULD BE COVERED BY CLAUSE (D). IF THAT BE SO, THE APPELLANTS WERE RIGHT IN PAYING COURT FEE OF RS.500 /-. IN VIEW OF THAT, ORDER DATED 21 ST JANUARY 2009IS SET ASIDE AND APPEAL IS RESTORED TO FILE AS PROPERLY STAMPED. AFTER HEARING THE LD. AR WE NOT THAT IT IS UNDISPUT ED FACT THAT THE DISPUTED AMOUNT IN THE INSTANT CASE REPRESENTS THE LOSS. THUS RESPECTF ULLY FOLLOWING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GILBS COMPUTER LIMITED (SUPRA) WE HOLD THAT THE ASSESSEE WAS LIABLE TO PAY A SUM OF RS. 50 0 AS FEES ALONG WITH ITS APPEAL. THUS IN OUR CONSIDERED VIEW THERE IS NO DEFECT IN THE AP PEAL AS FAR AS THE ISSUE OF FEES IS CONCERN. NOW COMING TO THE FACTS OF THE CASE : 5. AT THE OUTSET, IT WAS OBSERVED THAT THE ASSESSEE BEFORE US IN THE GROUNDS OF APPEAL HAS PLEADED THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY OF BEING HEARD. 6. THE LD. AR BEFORE US SUBMITTED THAT THE ADJOURNM ENT PETITION WAS FILED BEFORE THE LD. CIT(A) VIDE DATED 14.01.2016 AND THE LD. CI T(A) ACCEPTED THE SAME AND ADJOURNED THE MATTER FOR HEARING ON 02.02.2016. HOW EVER THE LD. CIT(A) PASSED THE ORDER DATED 19.01.2016 WITHOUT CONSIDERING THE ADJO URNMENT PETITION FILED BY THE ITA NO.622/KOL/2016 A.Y. 2010 -11 S.N.COLD STORAGE (P) LTD. VS. JCIT, RN-2 , HLG. PAGE 3 ASSESSEE INADVERTENTLY. THUS, THE AR PRAYED TO REST ORE THE MATTER TO THE FILE OF LD. CIT(A). ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RESTORED BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATION. 7. AT THE OUTSET WE FIND THAT THE LD. CIT(A) AFFIRM ED THE ACTION OF ASSESSING OFFICER WITHOUT HEARING THE ASSESSEE IN PERSON DESP ITE THE FACT THE ADJOURNMENT APPLICATION WAS FILED BY THE ASSESSEE AS DEMONSTRAT ED BY THE LD. AR. IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO REMI T THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISE D BY ASSESSEE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. IT IS NEEDLESS TO SAY THAT THE ASSESSEE SHOULD CO-OPERATE IN THE APPELLATE PROCEED ING. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PU RPOSE. 8. IN THE RESULT, FOR STATISTICAL PURPOSE THE APPEAL O F ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10/11/2017 SD/- SD/- ( % ') ( ') (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ) - 10/11/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-S.N.COLD STORAGE (P) LTD.HAAMIR GACHI, B RHMANPARA, CHANDANNA GAR, HOOGHLY-712405 2. /RESPONDENT-JCIT, RANGE-2, GRANT TRUNK RD. CHINSURA H, HOOGHLY-712102 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . %%, , , / DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO ,,