Nishi Kanta Ghosh, Howrah V. ITO, Ward - 55(2), Kolkata, Kolkata

ITA 662/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8133 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2012
• Court: TRIBUNAL
• Department Lawyers: AMIT MAITNA
• Assessee Lawyers: SWAPAN MUKHEREJEE
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.662/KOL/2012 ASSESSMENT YEAR:2008-09 NISHI KANTA GHOSH, GHOSH MEDICALAGENCY, AMTA, SAHAPARA, HOWRAH 711 401 [PAN: ADXPG 3988P] V/S . INCOME TAX OFFICER, WARD-55(2), 54/1, RAFI AHMAD KIDWAI ROAD, KOLKATA 700 016 (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI SWAPAN MUKHEREJEE, AR /BY RESPONDENT SHRI AMIT MAITNA, SR. DR /DATE OF HEARING 30-08-2012 /DATE OF PRONOUNCEMENT 25-09-2012 O R D E R PER SANJAY ARORA, AM:- THIS IS AN APPEAL BY THE ASSESSEE AITATING THE ORD ER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)XXXVI, KOLKATA (CIT(A) FOR S HORT) DATED 03-12-2012, DISMISSING THE ASSESSEES APPEAL CHALLENGING ITS AS SESSMENT U/S.143(3) OF THE INCOME- TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSES SMENT YEAR (A.Y) 2008-09 VIDE ORDER DATED 31-12-2010. 2. THE IMPUGNED ORDER IS AN EX PARTE ORDER, DISMISSING THE ASSESSSEES APPEAL IN LIMINE BY THE FIRST APPELLATE AUTHORITY IN VIEW OF THE NO N-REPRESENTATION BY THE ASSESSEE BEFORE HIM DESPITE THE HEARING BEING FIXED ON SEVER AL DATES, BY INVOKING THE DECISION IN THE CASE OF CIT V. MULTIPLAN INDIA (PVT) LTD. (1991) 38 ITD 320 (DEL). AGGRIEVED, THE ASSESSEE IS IN APPEAL. 3.1 BEFORE US, THE ASSESSEE SOUGHT TO EXPLAIN THAT THE NON-ATTENDANCE ON THE LAST DATE OF HEARING, I.E., 03-02-2012, WHICH IS ALSO TH E DATE OF THE APPELLATE ORDER, WAS FOR ITA NO662/KOL/2012 A.Y. 2008-09 NISHIS K GHOSH V. ITO WD-55(2), KOL PAGE 2 THE REASON THAT THE SAID DATE STOOD INADVERTENTLY M ENTIONED IN THE NOTICE OF HEARING AS 30-02-2012. THERE IS CLEARLY NO SUCH DATE, AND WH ICH EXPLAINS THE NON-ATTENDANCE BY THE ASSESSEE ON 03-02-2012. THOUGH REPRESENTATION W AS MADE IN THIS REGARD BEFORE THE LD. CIT(A), THE SAID AUTHORITY EXPRESSED REGRET, ST ATING THAT IT WAS NOT POSSIBLE TO EITHER RECALL OR REVIEW HIS ORDER; THE CLERICAL MISTAKE WI TH REGARD TO DATE MENTIONED ON THE NOTICE OF HEARING NOTWITHSTANDING. THE ADMISSION OF THE SAID MISTAKE, HOWEVER, PROVES THE ASSESSEES BONA FIDES FOR NON-ATTENDANCE. AS SUCH, THE IMPUGNED ORDER WA S PRAYED FOR BEING VACATED. 3.2 THE LD. DR, ON THE OTHER HAND, COULD NOT CONTRO VERT THE SAID SUBMISSIONS BY THE LD. AR, WHICH ARE EVEN OTHERWISE BORNE BY THE RECOR D; BOTH QUA THE SEVERAL DATES OF HEARING AFFORDED BY THE LD. CIT(A), AS WELL AS THE ADMISSION OF THE CLERICAL MISTAKE IN INTIMATING THE DATE OF HEARING, WHICH ARE PATENT FR OM THE IMPUGNED ORDER AND THE LETTER DATED 20-02-2012 TO THE ASSESSEE BY THE OFFICE OF T HE LD. CIT(A) (ON RECORD). 4. IN VIEW OF THE FOREGOING UNDISPUTED FACTS, WE ON LY CONSIDER IT FIT AND PROPER UNDER THE CIRCUMSTANCES TO SET ASIDE THE IMPUGNED O RDER, AND RESTORE THE MATTER BACK TO FILE OF THE FIRST APPELLATE AUTHORITY FOR A FRES H ADJUDICATION OF THE ASSESSEESS APPEAL BEFORE HIM. IN THIS, WE ARE GUIDED NOT ONLY BY THE PRINCIPLES OF NATURAL JUSTICE; THE MISTAKE IN COMMUNICATING THE DATE OF HEARING BEING ADMITTED, BUT ALSO BY LAW - THE FIRST APPELLATE AUTHORITY HAS TO DISPOSE OF THE ASS ESSEES APPEAL BEFORE HIM IN TERMS OF SECTION 250(6) OF THE ACT, I.E., ON MERITS, AND IT IS NOT PROPER FOR THE SAID AUTHORITY TO TAKE RECOURSE TO THE CITED DECISION BY THE TRIBUNAL . WE DECIDE ACCORDINGLY, 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. SD/- SD/ - (GEORGE MATHAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, *DKP - 25/09/2012 ITA NO662/KOL/2012 A.Y. 2008-09 NISHIS K GHOSH V. ITO WD-55(2), KOL PAGE 3 ! ! ! ! ''# ''# ''# ''# $ # $ # $ # $ # / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. %'& ' / CONCERNED CIT 4. ' - / CIT (A) 5. #() '''& , '& , *+% / DR, ITAT, KOLKATA 6. ),- ./ / GUARD FILE. BY ORDER/ ! , ASSTT. REGISTRAR, KOLKATA BENCHES STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 30/08 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 31/08 4) DATE OF CORRECTION 07/09 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 07/09 7) ORDER UPLOADED ON /09 8) SHORT-HAND NOTE ATTACHED TO FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON /09 ORDER PRONOUNCED ON 25/9/12 SD/- SD/- [ GEORGE MATHAN ] [ C.D RAO ]