M/s. Rainbow Nirman Private Limited , Kolkata V. ITO, Ward - 8(3), Kolkata , Kolkata

ITA 66/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8774 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 11-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R SHYAM
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) ITA NO. 66/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. RAINBOW NIRMAN PVT. LTD............................................APPELLANT 3B, WOOD STREET KOLKATA 700 017 [PAN : AADCR 7524 E] VS. INCOME TAX OFFICER, WARD-8(3), KOLKATA.................................................RESPONDENT APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE . SHRI R. SHYAM, CIT D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 28 TH , 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 19 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA, (LD. CIT(A)) PASSED U/S. 250 OF THE INCOME TAX ACT, 1961, (THE ACT), DT. 22/11/2017, FOR THE ASSESSMENT YEAR 2012-13. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUE OF NOTICE BY RPAD. THERE WAS NO APPLICATION MOVED BY THE ASSESSEE FOR ADJOURNMENT EITHER. UNDER THE CIRCUMSTANCES WE DISPOSE OF THE CASE EX-PARTE ON MERITS QUA THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. AFTER HEARING THE LD. D/R AND PERUSING THE ORDER PASSED BY THE LD. CIT(A), WE FIND THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) AND HENCE AND EX-PARTE ORDER WAS PASSED. AS THE LD. CIT(A) HAS NOT DISPOSED OFF THE CASE ON MERITS, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A), FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, ON THE GROUNDS OF NATURAL JUSTICE, SUBJECT TO THE PAYMENT OF COST OF RS.10,000/- (RS. TEN THOUSAND ONLY) BY THE ASSESSEE IN FAVOUR OF PRIME MINISTER RELIEF FUND, FOR HAVING NOT APPEARED BEFORE THE LD. CIT(A) AS WELL AS BEFORE US IN THIS PROCEEDING.. THE CIT(A) SHALL VERIFY THE SAID PAYMENT BY THE ASSESSEE AND THEREAFTER PROCEED TO DISPOSE OFF THE CASE ON MERITS. FOR THIS PROPOSITION TO LEVY COSTS, WHILE CONDONING THE ACTIONS OF THE ASSESSEE AS REASONABLE, WE RELY ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF 2 ITA NO. 66/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. RAINBOW NIRMAN PVT. LTD VIJAY VISHIN MEGHANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE IN ITA NO. 493 OF 2015 & 508 OF 2015, DT. SEPTEMBER 19, 2017, WHEREIN AT PARA 11, IT HAS BEEN HELD AS FOLLOWS:- 11. WE DO NOT FIND THAT ANY OF THESE DECIDED CASES HAVE ANY APPLICATION TO THE FACTS BEFORE US. WE HAVE IMPOSED THE COSTS NOT BECAUSE THE APPELLANT WAS NOT ACTING BONA FIDE BUT FINDING THAT EVEN AFTER THE LEGAL ADVICE WAS OBTAINED, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THERE WAS TIME WHICH WAS CONSUMED AND IN ALL THIS DELAY OF 2984 DAYS OCCURRED. WHILE CONDONING SUCH DELAY, IT IS PERMISSIBLE FOR COURT, IN ITS DISCRETION, TO IMPOSE COSTS. EVENTUALLY, THE RIGHTS AND EQUITIES HAVE TO BE BALANCED. TO RENDER SUBSTANTIAL JUSTICE AND NOT TO ENRICH THE REVENUE THAT THE COSTS HAVE BEEN IMPOSED. IT IS NOT, THEREFORE, A CASE WHERE THE STATE HAS BEEN ALLOWED TO RETAIN ANY BENEFIT OR HAS BEEN BENEFITED BY ANY DIRECTIONS. IT IS THE COURT WHICH IN ITS DISCRETION HAS IMPOSED THIS CONDITION. WE DO NOT FIND ANY BASIS TO ALTER IT. THE REQUEST IN THAT BEHALF IS REFUSED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS DIRECTED ABOVE. KOLKATA, THE 19 TH DAY OF DECEMBER, 2018. SD/- SD/- [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 19.12.2018 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1 . M/S. RAINBOW NIRMAN PVT. LTD 3B, WOOD STREET KOLKATA 700 017 2. INCOME TAX OFFICER, WARD-8(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES 3 ITA NO. 66/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. RAINBOW NIRMAN PVT. LTD