M/s Fidelity Tradelink (P) Ltd., Mumbai V. I.T.O.,Ward-5(4), Kolkata

ITA 69/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9704 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA JCIT LD
• Keywords: Assessment record; Right to appeal; Set aside
• Section: 13

Judgement Text

1 IT A NO . 69 /KOL/2020 AYS. 20 12 - 13 M/S. FIDELITY TRADELINKP.LTD , A(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL A(SMC) BENCH: KOLKATA () . . , ) [BEFORE SHRI A. T. VARKEY, JM ] ITA NO. 69 /KOL/2020 ASSESSMENT YEAR: 20 12 - 13 M/S. FIDELITY TRADELINK P.LTD. PAN: AABCF3217E VS. I.T.O WARD 5(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 02.07 .20 20 DATE OF PRONOUNCEMENT 07 . 0 7 .20 20 FOR THE APP ELLANT NONE APPEARED FOR THE RESPONDENT SHRI JAYANTA KHANRA, JCIT , LD. SR. DR ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THEORDER OF LD. CIT(A) - 7 , KOLKATA DATED 16 - 05 - 2019 FOR THE ASSESSMENT YEAR 2012 - 1 3 . 2. NONE APPEARED FOR THE ASSESSEE. HOWEVER, I NOTE THAT THE IMPUGNED ORDER OF THE LD. CIT(A) IS AN EX PARTE AND THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT GOING INTO THE MERITS OF THE CASE AND WITHOUT CONSIDERING THE GROUNDS OF APPEAL RAISED BEFORE HIM. 3. IT IS FURTHER NOTED THAT THE LD. CIT(A) HAS NOTED THAT THE APPEAL OF ASSESSEE WAS FIXED THRICE ON 08 - 03 - 2019, 28 - 03 - 2019 AND 13 - 05 - 2019 AND SINCE NONE APPEARED/ATTENDED BEFORE HIM, THE LD. CIT(A) WAS PLEASE TO PASS AN EX PARTE ORDER ON 16 - 05 - 2019. IT IS ALSO NOTED THAT ADDRESS GIVEN BEFORE THE LD. CIT(A) READS AS UNDER: - M/S. FIDELITY TRADELINK ( P) LTD. 9/12 LAL BAZAR STREET, 3 RD FLOOR, BLOCK - B KOLKATA - 700 001 . 4. WHEREAS IN THE F ORM NO. 36 BEFORE THIS TRIBUNAL, THE ASSESSEE HAS GIVEN THE FOLLOWING ADDRESS FOR SENDING OF ANY NOTICE/ORDER : M/S. FIDELITY TRADELINK (P) LTD 28 KEWAL INDUSTRIAL E STATE, SB MARG, LOWER PAREL, MUMBAI - 400 013 . 2 IT A NO . 69 /KOL/2020 AYS. 20 12 - 13 M/S. FIDELITY TRADELINKP.LTD 5 . THUS, IT IS PRESUMED THAT LD. CIT(A) MIGHT HAVE SENT THE NOTICE IN THE KOLKATA ADDRESS AND BEFORE THIS TRIBUNAL THE ASSESSEE HAS GIVEN ADDRESS AT A MUMBAI ADDRESS FOR SENDING OF ANY NOTICE/ORDER IN THE FORM NO. 36. IT HAS TO BE KEPT IN MIND THAT IF THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE AO , ASSESSEE HAS THE RIGHT TO FILE AN APPEAL BEFORE THE LD. CIT(A), WHO IS THE F IRST A PPELLATE A UTHORITY . TH IS RIGHT OF THE ASSESSEE IS A STATUTORY/ VESTED RIGHT AND THE APPEAL SO PREFERRED BY THE ASSESSEE WILL BECOME MEANINGLESS, IF THE F IRST A PPELLATE A UTHORITY I.E. THE LD. CIT(A) DOES NOT ADJUDICATE THE GROUNDS RAISED BY THE ASSESSEE ON MERITS. SINCE IN THIS CA SE, THE ASSESSEE DID NOT BOTHER TO APPEAR BEFORE HIM, RESULTED IN DISMISSAL OF THE APPEAL EX PARTE BY THE LD. CIT(A) WITHOUT GOING INTO THE MERITS OF THE CASE/WITHOUT CONSIDERING THE GROUNDS OF APPEAL ON MERITS. HOWEVER, I AM OF THE OPINION THAT WITHOUT HEARING THE ASSESSEE , THE LD. CIT(A) OUGHT NOT TO HAVE PASS ED THE IMPUGNED ORDER. EVEN IF HE WANTED TO PASS THE ORDER SINCE NONE APPEARED ON BEHALF OF ASSESSEE DESPITE SERVICE OF NOTICE , HE SHOULD CALL FOR THE ASSESSMENT RECORDS AND THEREAFTER, PASS THE O RDER ON MERITS, WHICH THE LD. CIT(A) HAS NOT DONE. 6 . I AM ALSO OF THE OPINION THAT ASSESSEE NEEDS TO BE VIGILANT AND BY MERELY FILING THE APPEAL THE ASSESSEE CANNOT EXPECT THE F IRST A PPELLATE A UTHORITY ( LD. CIT - A) TO DECIDE THE GROUNDS RAISED WITHOUT ANY SUPPORTING MATERIALS/ DOCUMENTS A ND WRITTEN SUBMISSIONS. I NOTE THAT THE LD. CIT(A) HAS NOTED THAT APPEAL WAS POSTED FOR HEARING ON THRICE I.E 08 - 03 - 2019, 28 - 03 - 2019 AND 13 - 05 - 2019 AND FINDING THAT N ONE APPEARED O N BEHALF OF ASSESSEE HE DISMISSED THE APPEAL PREFERRED BY THE ASSESSEE. HOWEVER, I NOTE THAT THOUGH THE LD. CIT(A) HAS STATED TO H AVE FIXED THE APPEALS ON THREE DATES, HOWEVER THERE IS NO MENTION ABOUT THE SERVICE OF NOTICE/PROOF OF SERVICE. SO, I DO NOT COUNTENANCE THE ACTION OF THE LD. CIT(A) IN EX PARTE DISMISSING THE APPEALS . SINCE THE LD. CIT(A) WAS EXPECTED TO PASS/ADJUDICATE THE GROUNDS OF APPEAL BASED ON THE RECORDS AVAILABLE AND IF NECESSARY CALL FOR THE ASSESSMENT RECORDS, AND THEN PASS THE ORDER ON MERIT. IN THE LIGHT OF THE ABOVE, I AM OF THE OPINION THAT ASSESSEE SHOULD HAVE GOT PROPER OPPORTUNITY TO PRESENT ITS CASE BEFORE THE LD. CIT(A) . BE THAT AS IT MAY BE, H OWEVER, ASSESSEE IS ALSO EXPECTED TO BE VIGILANT AND SHOULD PUR SUE ITS APPEAL EARNESTLY AND DILIGENTLY. I EXPECT THAT AFTER GETTING THIS ORDER OF THE TRIBUNAL , THE ASSESSEE WOULD FILE THE CORRECT POSTAL ADDRESS AS WELL AS CORRECT E - MAIL ID BEFORE THE LD. CIT(A) AND, THEREAFTER, PURSUE THE APPEAL DILIGENTLY BY FILIN G WRITTEN SUBMISSIONS AS WELL AS DOCUMENTS, IF SO ADVISED, IN SUPPORT OF THE CLAIM AND BE PRE SENT EITHER THROUGH ITS 3 IT A NO . 69 /KOL/2020 AYS. 20 12 - 13 M/S. FIDELITY TRADELINKP.LTD DIRECTORS OR THROUGH LD.AR AND EXPLAIN THE FACTS AND LAW IN SUPPORT OF THE GROUNDS RAISED BY THE ASSESSEE . IN THE LIGHT OF ABOVE DISCUSS ION, THE IMPUGNED ORDERS OF THE LD. CIT(A) A RE SET ASIDE AND THE APPEAL IS RESTORED BACK TO HIM ( LD. CIT - A) WITH A DIRECTION TO ADJUDICATE THE GROUNDS OF APPEAL ON MERITS AFTER HEARING THE ASSESSEE/GOING THROUGH THE SUBMISSIONS/DOCUMENTS AND TO PASS A SPEAKING ORDER. 7 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 JULY 2020 . SD/ - ( ABY. T. VARKEY ) JUDICIALMEMBER DATED : 07 JULY 2020 **PP (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. FIDELITY TRADELINKP.LTD 28 KEWAL INDUSTRIAL ESTATE, SB MARG, LOWER PAREL, MUMBAI - 400 013. 2 RESPONDENT ITO, 5(4), AAYKARBHAWAN, P - 7 CHOWRINGHEE SQ., KOLKATA - 69. 3. 4. 5. CIT(A) - 4 , KOLKATA (SENT THROUGH E - MAIL) CIT - , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E - MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR