M/s Rosemary Vincom LLP(Earlier M/s Rosemary Vincom Pvt. Ltd.), Kolkata V. ACIT, (OSD), Ward-4(1), Kolkata

ITA 66/KOL/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6354 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 25-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 250; 20

Judgement Text

I.T.A. NO. 01/KOL/2021 A.Y. 20 09-2010 M/S. TRIMUDRA VINCOM (P) LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 66/KOL/2021 ASSESSMENT YEAR: 2015-2016 M/S. ROSEMARY VINCOM LLP,.......................... ...............................APPELLANT (EARLIER KNOWN AS M/S/ ROSEMARY VINCOM PVT. LIMITED ), VILLAGE POST, PANIARAH, HOWRAH-711302 [PAN: AASFR0062P] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX (OSD),........ ...................RESPONDENT WARD-4(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI SUNIL SURANA, A.R., FOR THE APPLICANT SMT; RANU BISWAS,, ADDL. CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 16, 2021 DATE OF PRONOUNCING THE ORDER : APRIL 16, 2021 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA DAT ED 03.04.2019. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS DELAY O F 186 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TR IBUNAL. IN THIS REGARD, THE ASSESSEE HAS MOVED AN APPLICATION SEEKING CONDO NATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN THEREIN , WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 186 D AYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LD. D.R. HAS NOT I.T.A. NO. 01/KOL/2021 A.Y. 20 09-2010 M/S. TRIMUDRA VINCOM (P) LIMITED 2 RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS ACCORDINGLY CONDONED AND THIS APPEAL OF THE ASSESSEE IS BEING D ISPOSED OF ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF TRADING AND OTHERS. THE RETURN OF I NCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 11 .01.2016 DECLARING A LOSS OF RS.2,21,638/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 11.12.2017, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.42,48,781 /- AFTER MAKING ADDITION, INTER ALIA, ON ACCOUNT OF INTEREST INCOME AMOUNTING TO RS.43,93,116/- BY TREATING THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE A SSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORD ER DATED 03.04.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF NOTICES STATED TO BE ISS UED BY THE LD. CIT(APPEALS) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME WAS EVER RECEIVED BY THE ASSESSEE AND SUCH NON -RECEIPT OF NOTICES RESULTED IN NON-COMPLIANCE ON THE PART OF THE ASSES SEE BEFORE THE LD. CIT(APPEALS). HE HAS ALSO INVITED OUR ATTENTION TO THE RELEVANT PORTION OF THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) TO POINT OUT THAT THE NOTICES I.T.A. NO. 01/KOL/2021 A.Y. 20 09-2010 M/S. TRIMUDRA VINCOM (P) LIMITED 3 OF HEARING SENT BY THE LD. CIT(APPEALS) WERE NOT SE RVED ON THE ASSESSEE AND THE SAME WERE RETURNED BACK UNDELIVERED BY TH E POSTAL AUTHORITY. KEEPING IN VIEW ALL THESE FACTS OF THE CASE, WE FIN D MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER PASSED EX- PARTE WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE AND THERE IS A CLEAR VIOLATION OF PRIN CIPLE OF NATURAL JUSTICE. MOREOVER, THE LD. CIT(APPEALS) AS PER THE PROVISION S OF SUB-SECTION (6) OF SECTION 250 WAS REQUIRED TO DISPOSE OF THE APPEAL O F THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATI ON, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBS ERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DI SPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS SESSEE AND BY PASSING A WELL REASONED AND WELL DISCUSSED ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 16, 202 1. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 16 TH DAY OF APRIL, 2021 COPIES TO : (1) M/S. ROSEMARY VINCOM LLP, (EARLIER KNOWN AS M/S/ ROSEMARY VINCOM PVT. LIMITED ), VILLAGE POST, PANIARAH, HOWRAH-711302 (2) ASSISTANT COMMISSIONER OF INCOME TAX (OSD WARD-4(1), KOLKATA, I.T.A. NO. 01/KOL/2021 A.Y. 20 09-2010 M/S. TRIMUDRA VINCOM (P) LIMITED 4 AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.