Kundan Udyog (P) Ltd., Kolkata V. ITO, Ward - 4(4), Kolkata, Kolkata

ITA 721/KOL/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70495 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 10-05-2011
• Court: TRIBUNAL
• Department Lawyers: V A RAJU
• Assessee Lawyers: S SETHIA
• Keywords: Opportunity of being heard; Non compliance; Non passing of speaking order
• Section: 143(3)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 721/KOL/2011 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2003-04 KUNDAN UDYOG (P) LTD. VS. INCOME-TAX OFFICER, W D-4(4), KOLKATA. (PAN:AACCK2247C) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 11.12.2013 DATE OF PRONOUNCEMENT: 19.12.2013 FOR THE APPELLANT: SHRI S. SETHIA FOR THE RESPONDENT: SHRI V. A. RAJU, SR. DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 469/CIT(A)-XIX/ITO,WD-4(4),KOL/08-09 DATED 10.12.20 10. ASSESSMENT WAS FRAMED BY ITO, WARD-4(4), KOLKATA U/S. 143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2003-04 VIDE HIS ORDER DA TED 24.03.2006. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ORDER OF CIT(A) IS EX PARTE ORDER AND FOR THIS, ASSESSEE RAISED FOLLOWING SIX G ROUNDS: 1. FOR THAT THE LD. C.1.T. (APPEAL)XIX/KOL ERRED I N LAW AS WELL AS IN FACTS AND CIRCUMSTANCES OF THE CASE WHILE DISMISSING THE APPE AL EX-PARTY. 2. FOR THAT THE LD. C.I.T. (APPEAL) XIX/KOL ERRED I N LAW AS WELL AS IN FACTS AND CIRCUMSTANCES OF THE CASE IN AS MUCH AS THAT HE HAD NOT CONSIDERED THE FACT THAT THE DATES FIXING FOR HEARNG WAS NOT COMMUNICATED AT AL L TO THE APPELLANT. 3. FOR THAT THE. LD. C.I.T. (APPEAL) XIX/ KOL ERRED IN LAW AS WELL AS IN FACTS AND CIRCUMSTANCES OF THE CASE WHILE SUMMARILY DISMISSIN G THE APPEAL WITHOUT CONSIDERING THE WRITTEN SUBMISSION AND EVIDENCES MADE AND SUBMI TTED BEFORE HIM. 4. FOR THAT THE LD. C.1.T. (APPEAL) XIX/ KOL ERRED IN LAW AND CIRCUMSTANCES TO CONSIDER THE POINT THAT THE APPELLANT WAS NOT GIVEN AN OPPOR TUNITY TO FURTHER SUBMIT THE SUPPLEMENTARY DOCUMENTS AND SUBMISSIONS. 5. FOR THAT THE LD. C.I.T. (APPEAL) XIX/ KOL ERRED IN LAW TO CONSIDER THAT THE APPELLANT WAS DENIED ITS RIGHT TO SUBMIT THE SUPPLEMENTARY DO CUMENTS AND. SUBMISSIONS BEFORE HIM, WHICH WAS TO BE SUBMITTED AFTER RECEIVING THE INFORMATON FROM THE I.T.O. WARD 4 (4) / KOL, WHO WAS INCIDENTALLY ACTING AS A CENTRAL PUBLIC INFORMATION OFFICER AND FROM WHOM SUCH INFORMATION WERE REQUESTED UNDER THE RIGH T TO INFORMATION ACT, 2005. 2 ITA NO. 721/K/2011 KUNDAN UDYOG (P) LTD., AY:2003-04 6. FOR THAT THE LD. C.I.T. (APPEAL) XIX/ KOL ERRED IN LAW AS WELL AS IN FACTS AND CIRCUMSTANCES OF THE APPEAL BY NOT CONSIDERING THE FACT THAT THE DELAY IN SUBMISSION OF THE SUPPLEMENTARY DOCUMENTS AND SUBMISSIONS WAS NOT DUE TO THE NEGLIGENCE OF THE APPELLANT BUT DUE TO NON COMPLIANCE OF THE REQUEST OF THE APPELLANT IN TIME BY THE I.T.O. WARD 4 (4)/ KOL, UNDER THE RIGHT TO INFORMATION ACT , 2005, WHEREIN HE HAD BEEN REQUESTED TO PROVIDE CERTAIN NFORMATION WHICH WERE NECESSARY FOR SUBMITTING THE SUPPLEMENTARY DOCUMENTS AND SUBMISSIONS. 3. LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE VERY FIRST PARA OF THE APPELLATE ORDER, WHICH READS AS UNDER: THE APPEAL HAS BEEN FILED AGAINST THE ORDER DATED 24-03-2006 PASSED BY THE ITO, WD- 4(4), KOLKATA U/S. 143(3) OF THE I.T. ACT FOR A.Y.2 003-04. DURING THE APPELLATE PROCEEDINGS AT CERTAIN OCCASIONS SHRI SUBHAS SETHIA, ADVOCATE A ND THE DIRECTOR OF THE COMPANY APPEARED AND FILED SUBMISSION. SUBSEQUENTLY, CERTAI N DETAILS AND DOCUMENTS WERE CALLED FOR FROM THE ASSESSEE BUT AFTER 23-06-2010, THERE W AS NO COMPLIANCE ON BEHALF OF ASSESSEE COMPANY. THE LAST NOTICE OF HEARING WAS ISSUED FIX ING THE DATE OF HEARNG ON 09-12-2010 BUT ON THAT DATE ALSO NO COMPLIANCE WAS MADE. HENCE , THE APPEAL IS DECIDED ON THE BASIS OF MATERIALS ON RECORD AS WELL AS THE SUBMISSION FI LED ON 14-06-2010. FROM THE ABOVE ORDER OF CIT(A), IT IS CLEAR THAT TH E ASSESSEE WAS NOT PROVIDED WITH REASONABLE OPPORTUNITY OF BEING HEARD AND WHEN THIS WAS CONFRO NTED TO LD. SR. DR, HE FAIRLY CONCEDED THAT THE ISSUE CAN BE SET ASIDE TO THE FILE OF CIT(A FOR FRESH ADJUDICATION. 4. AFTER HEARING BOTH THE SIDES AND GOING THROUGH T HE FACTS OF THE CASE, WE FIND THAT THE ORDER OF CIT(A) IS A NON SPEAKING ORDER. WE ARE OF THE VIEW THAT WHERE APPEAL HAS BEEN DISPOSED OF EVEN THOUGH ON MERITS WITHOUT A SPEAKIN G ORDER, THE ORDER OF CIT(A) CANNOT BE SUSTAINED. THE PROVISIONS OF SECTION 250(6) OF THE ACT ARE IN THE NATURE OF JUDICIAL DISCRETION TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE OR DER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT CRYPTIC BUT SH ALL BE SELF-EXPLANATORY. WE ALSO FIND THAT CIT(A) HAS PASSED THE ORDER PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. HENCE, WE SET ASIDE THE ORDER OF CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH DEC., 2013 SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19TH DECEMBER, 2013 12 '3' 4 JD.(SR.P.S.) 3 ITA NO. 721/K/2011 KUNDAN UDYOG (P) LTD., AY:2003-04 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT KUNDAN UDYOG (P) LTD., C/O SHRI SUBHAS SETHIA, ADVOCATE, 49/2B, RAMDULAL SARKAR STREET, KOLKATA-70 0 006 2 ./,- / RESPONDENT ITO, WARD-4(4), KOLKATA. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .