Sri Nikhil Ghosh, Midnapore V. ITO, WD-2, MALDA,

ITA 683/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0990 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• 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.683/KOL/2016 ASSESSMENT YEAR:2010-11 NIKHIL GHOSH PROP M/S UNITED TRADING, VILLAGE- MAHADIPUR, MALDA-732216 [ PAN NO.ADNPG 9257 B ] / V/S . INCOME TAX OFFICER, WARD-2, NETAJI MARKET COMPLEX, 11ST FLOOR, RATHBARI, MALDA /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI SALLONG YADEN, ADDL. CIT-DR /DATE OF HEARING 26-10-2017 /DATE OF PRONOUNCEMENT 17-11-2017 /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)-JALPAIGURI DATED 05.02.2015. A SSESSMENT WAS FRAMED BY JCIT, MALDA RANGE U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 22.03.2013 FOR ASSESSMEN T YEAR 2010-11. 2. AT THE OUTSET, LD AR FOR THE ASSESSEE DRAW OUR A TTENTION THAT THE APPEAL IS BARRED BY LIMITATION BY 341 DAYS DUE TO ILLNESS OF LD. ADVOCATE AND WHO SUBSEQUENTLY EXPIRED ON 04.02.2017 IN THIS REGARD ASSESSEE FILED AN AFFIDAVIT WHICH REPRODUCED HEREUNDER:- ITA NO.683/KOL/2016 A.Y. 2010-11 N.GHOSH VS. ITO WD-2 MLD. PAGE 2 , NIKHJIL GHOSH, SON OF RABILAL GHOSH AGED 59 YEAR S BY RELIGION HINDU, RESIDING AT VILLAGE-MAHANADIPUR, MALDA, DO HEREBY S OLEMNLY AFFIRM AND STATE AS FOLLOWS- 1. THAT I AM THE PROPRIETOR OF M/S UNITED TRADING 2. THAT I BEING AGGRIEVED WITH ASSESSMENT ORDER DATED 22.03.2013 FILED APPEAL BEFORE THE LD. CIT(A). 3. THAT THE SAID APPEAL WAS DISMISSED BY THE LD. CIT(A ) BY PASSING AN EX- PARTE ORDER DUE TO NON APPEARANCE OF ANYONE ON THE DATES FIXED FOR HEARING BEFORE THE LD. CIT(A). 4. THT SHRI LAXMI NARAYAN SINHA ROY, ADVOCATE, RESIDEN T OF FARM SIDE, POST- CHINSURAH, DISTRICT-HOOGHLY WAS ENGAGED IN THE INST ANT MATTER TO APPEAR BEFORE THE LD. CIT(A) AND I WAS UNDER THE BONA FIDE BELIEF THAT PROPER COMPLIANCES WERE MAD FROM THE END OF THE SAID SHRI LAXMI NARAYAN SINHA ROY, ADVOCATE. 5. THAT AFTER RECEIPT OF THE ORDER OF THE LD. CIT(A) ON 09.03.2015 IT CAME TO MY KNOWLEDGE THAT NO COMPLIANCE WAS MADE BY THE SAI D SHRI LAXMIO NARYAN SINHA ROY, ADVOCATE. 6. THAT ON VERIFICATION, IT WAS FOUND THAT SHRI LAXMI NARYAN SINHA ROY, ADVOCATE WAS VERY ILL DURING THE RELEVANT PERIOD AN D THUS, NO COMPLIANCES COULD BE MADE BY HIM. IT LATER TRANSPIRED THAT THE SAID ADVOCATE EXPIRED ON 04.02.2017 . 7. THAT I GIVE AN UNDERTAKING THAT PROPER COMPLIANCES SHALL BE MADE IN CASE THE ABOVEMENTIONED CASE IS SENT BACK TO THE FILE OF THE LD. CIT(A). 8. THAT THE FACTS STATED IN PARAS 1 TO 6 ARE TRUE TO T HE BEST OF MY KNOWLEDGE AND BELIEF AND PARAGRAPH 7 IS AN UNDERTAKING GIVEN BY ME. THEREFORE THE LD. ADVOCATE COULD NOT FILE THE APPEA L WITHIN DUE DATE FOR THE ASSESSEE AND SO CONDONATION OF DELAY WITH SUPPORTED AFFIDAVI T OF ASSESSEES LD. COUNSEL IS FILED. 3. LD. DR FOR THE REVENUE HAS NOT RAISED ANY OBJECT ION FOR THE DELAY OF CONDONATION. HENCE, IN VIEW OF ABOVE STATED FACTS W E CONDONE THE DELAY AND TO PROCEED TO HEAR THE APPEAL. 4. AT THE OUTSET, IT WAS OBSERVED THAT THE CASE WAS FIXED FOR HEARING ON SEVERAL OCCASIONS BEFORE THE LD. CIT-A BUT NONE APPEARED ON BEHALF OF ASSESSEE. THEREFORE, THE APPEAL WAS DECIDED BY LD. CIT(A) AS EX PARTE ON 5.02.2015. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILE D AN APPEAL BEFORE US AND FILED AN AFFIDAVIT 27-10-2017 WHICH READS AS UNDER:- I, NIKHIL GHOSH, SON OF RABILAL GHOSH, AGED 59 YEA RS; BY RELIGION HINDU, RESIDING AT VILLAGE- MHANADIPUR, MALDA, DO HEREBY S OLEMNLY AFFIRM AND STATE AS FOLLOWS- ITA NO.683/KOL/2016 A.Y. 2010-11 N.GHOSH VS. ITO WD-2 MLD. PAGE 3 1. THAT I AM THE PROPRIETOR OF M/S UNITED TRADING. I A M COMPETENT TO SWEAR THIS AFFIDAVIT. 2. THAT THE ORDER PASSED U/S. 250 OF THE ACT BY THE LD . CIT(A) WAS RECEIVED BY ME ON 09.03.2015. 3. THAT SUDDENLY I HAD TO GO OUT OF STATION AFTER RECE IVING THE SAID ORDER ON 09.03.2015 FOR SOME URGENT BUSINESS PURPOSE AND I H AD TO REMAIN OUT OF STATION DURING THE PERIOD 10.04.2015 TO 31.05.2015. 4. THAT I RETURNED BACK TO MY HOME TOWN ON 01.06.2015. THEN I WENT TO ADVOCATES OFFICE ON OR AROUND 02.06.2016 AND HANDE D OVER THE RELEVANT PAPERS TO SRI HARDAYAL PRASAD, ADVOCATE FOR THE PUR POSE OF FILING APPEAL. 5. THAT SRI HARDAYAL PRASAD, ADVOCATE ASKED FOR SOME M ORE DOCUMENTS WHICH WERE HANDED OVER TO HIM ON OR AROUND 10.06.2016. 6. THAT DUE TO RENOVATION WORK, SOME FILES, INCLUDING FILE OF MY CASE WERE MISPLACED IN THE OFFICE OF THE SAID SRI HARDAYL PRA SAD, ADVOCATE. IT TOOK A LONG TIME OF ABOUT NINE MONTHS WHEN THE MISPLACED F ILE WAS LOCATED AT THE TIME OF CLEANING WORK HELD AT THE CHAMBER OF SRI HA RDAYAL PRASAD, ADVOCATE ON 20.03.2016 (SUNDAY). 7. THAT THE SAID SRI HARDAYAL PRASAD, ADVOCATE DRAFTED APPEAL BY 05.04.2016. 8. THAT THE APPEAL PAPERS WERE SENT TO ME ON OR AROUND 09.04.2016 AND AFTER MY APPROVAL AND SIGNING FORMALITIES, I SENT THE SAM E BACK TO THE SAID SRI HARDAYAL PRASAD, ADVOCATE ON 10.04.2016. 9. THAT THE APPEAL PAPERS WERE LODGED IN THE OFFICE OF THE LD. INCOME TAX APPELLATE TRIBUNAL ON 13.04.2016 AFTER A DELAY OF 4 00 DAYS. 10. THAT THE FACTS STATED IN PARAS 1 TO 9 ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. AS SUCH, IT WAS PLEADED BEFORE US FOR ONE MORE OPPO RTUNITY MAY BE CONSIDERED TO APPEAR BEFORE THE LD. CIT(A). 5. ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIONING ANY R EASON FOR CONFIRMING THE SAME ON MERITS. THE PROVISIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN WRITING WITH R EASONING. BUT, WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO CONFIRMED THE ORDE R OF AO WITHOUT DECIDING THE SAME ON MERIT. WE ALSO FIND IN THE INTEREST OF JUST ICE AND FAIR PLAY LD. CIT(A) SHOULD HAVE GIVEN ANOTHER OPPORTUNITY TO THE ASSESSEE TO A PPEAR BEFORE HIM TO EXPLAIN HIS POINTS OF CONTENTIONS. THEREFORE, IN THIS VIEW OF T HE MATTER, WE ARE INCLINED TO REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY ASSESSEE ON MERIT AFTER GIVING REASONABLE OPPORT UNITY OF BEING HEARD TO ASSESSEE. IT ITA NO.683/KOL/2016 A.Y. 2010-11 N.GHOSH VS. ITO WD-2 MLD. PAGE 4 IS NEEDLESS TO SAY THAT THE ASSESSEE SHOULD CO-OPER ATE IN THE APPELLATE PROCEEDING. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLO WED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 17/11/2017 SD/- SD/- ( % ') ( ') (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ) - 17/11/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-NIKHIL GHOSH, PROP. M/S UNITED TRADING, VILL. MHADIPUR, MALDA-73221 6 2. /RESPONDENT-ITO, WARD-2, NETAJI MARKET COMPLEX,1 ST FL, RATHBARI, MALDA 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 ,,