Nirmal Sarkar , Kolkata V. A.C.I.T.,Circle-43, Kolkata

ITA 70/KOL/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0582 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Kolkata
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Set aside
• Section: 143(1); 250

Judgement Text

ITA NO. 70/KOL/2020 ASSESSMENT YEAR: 2007-2008 NIRMAL SARKAR 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 70/KOL/2020 ASSESSMENT YEAR: 2007-2008 NIRMAL SARKAR,..................................... ..................................APPELLANT 157/3, M.C. GARDEN ROAD, KOLKATA-700030 [PAN: AKOPS6171J] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...............RESPONDENT CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE WEST, KOLKATA-700001 APPEARANCES BY: N O N E, FOR THE APPELLANT SHRI JAYANTA KHANRA, JCIT, D.R., FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JUNE 15, 2020 DATE OF PRONOUNCING THE ORDER : JUNE 15, 2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA DA TED 30.10.2019, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 19 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TR IBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDO NATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN THEREIN , I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE P ART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LD . D.R. HAS NOT RAISED ANY ITA NO. 70/KOL/2020 ASSESSMENT YEAR: 2007-2008 NIRMAL SARKAR 2 OBJECTION IN THIS REGARD. I, THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF RETAIL TRADING OF FOREIGN LIQUOR. T HE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 29 .03.2008 DECLARING TOTAL INCOME OF RS.3,54,126/-. THE SAID RETURN WAS INITIALLY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) OF THE A CT ON 18.03.2009. THE ASSESSMENT, HOWEVER, WAS SUBSEQUENTLY REOPENED BY T HE ASSESSING OFFICER AND IN THE ASSESSMENT COMPLETED UNDER SECTI ON 147/144 OF THE ACT VIDE AN ORDER DATED 01.03.2013, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.16,98,870 /- AFTER MAKING THE FOLLOWING ADDITIONS:- (I) DISALLOWANCE OF DEPRECIATION ON FURNITURE RS. 53,550/ - (II) DISALLOWANCE OF PURCHASE OF FREEZE RS. 18,000/ - (III) INVESTMENT IN KANIKA HARDWARE RS.2,01,824/ - (IV) DISALLOWANCE OF LICENCE AND TAXES RS. 36 ,000 / - (V) DISALLOWANCE OF RENT RS. 20,000/ - (VI) DISALLOWANCE OF REPAIRS TO BUILDING RS. 56,348/ - (VII) DISALLOWANCE OF SALARY AND BONUS RS. 59,500/ - (VIII) INFLATED PURCHASES RS.3,06,248/ - (IX) CAPITAL CONTRIBUTION RS.4,95,721/ - 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144/147, AN APPEAL WAS PREFERRED BY THE ASSESSEE BE FORE THE LD. CIT(APPEALS) DISPUTING THE VARIOUS ADDITIONS MADE B Y THE ASSESSING OFFICER AND SINCE THERE WAS NO SATISFACTORY COMPLIA NCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE AP PEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED ITA NO. 70/KOL/2020 ASSESSMENT YEAR: 2007-2008 NIRMAL SARKAR 3 30.10.2019. AGGRIEVED BY THE ORDER OF THE LD. CIT(A PPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE THE TRIBUNAL FIXED TODAY, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. IN THE PRELIMIN ARY ISSUE RAISED IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE IMPUG NED ORDER PASSED BY THE LD. CIT(APPEALS) DISMISSING THE APPEAL OF THE A SSESSEE FOR NON- PROSECUTION ON THE GROUND THAT PROPER AND SUFFICIEN T OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO HIM BY THE LD. CIT(APPEALS). IN THIS REGARD, IT IS NOTED THAT THE ASSESSEE NOT ONLY HAD FILED A WRITTE N SUBMISSION DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT( APPEALS) BUT HAD ALSO SOUGHT TIME FOR MAKING A FURTHER SUBMISSION. AS CLE ARLY MENTIONED BY THE LD. CIT(APPEALS) IN HIS IMPUGNED ORDER, ADJOURNMENT PETITIONS WERE ALSO FILED BY THE ASSESSEE ON THE VARIOUS DATES OF HEARI NG. IT APPEARS THAT THE LD. CIT(APPEALS), HOWEVER, DID NOT GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO MAKE FURTHER SUBMISSION AND PROC EEDED TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION WITHOUT GOING INTO THE MERITS OF THE ISSUES INVOLVED IN THE APPEAL OF THE ASSESSE E AND WITHOUT CONSIDERING THE WRITTEN SUBMISSION FILED BY THE ASS ESSEE. MOREOVER, THE LD. CIT(APPEALS) AS PER THE PROVISIONS OF SUB-SECTI ON (6) OF SECTION 250 WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESS EE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE D ECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE I MPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DOES NOT COMPLY WITH THESE REQUIREMENTS. THE LD. D.R. HAS SUBMITTED THAT THIS MATTER MAY BE REMITTED BACK TO THE LD. CIT(APPEALS) FOR DISPOSING OF THE APPEAL OF THE ASS ESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. KEEPING IN VIEW ALL TH ESE FACTS AND CIRCUMSTANCES OF THE CASE, I SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DISMISSING THE APPEAL OF THE ASSES SEE FOR NON- PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DI SPOSING OF THE APPEAL ITA NO. 70/KOL/2020 ASSESSMENT YEAR: 2007-2008 NIRMAL SARKAR 4 OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 15, 2020 . SD/- (P.M. JAGTAP) VICE- PRESIDENT) KOLKATA, THE 15 TH DAY OF JUNE, 2020 COPIES TO : (1) SHRI NIRMAL SARKAR, 157/3, M.C. GARDEN ROAD, KOLKATA-700030 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE WEST, KOLKATA-700001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA 5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.