Sri Rajesh Soni, Kolkata V. I.T.O.,Ward-31(4), Kolkata

ITA 729/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7299 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: SUJAY SEN
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 729/KOL/2019 ASSESSMENT YEAR: 2009-10 SHRI RAJESH SONI....................................................................................APPELLANT C/O. M/S. SALARPURIA JAJODIA & CO., 7, CHITTARANJAN AVENUE, KOLKATA 700 072. [PAN: AKLPS 3320 G] VS ITO, WARD-31(4)KOLKATA..................................RESPONDENT 10-B, MIDDLETON ROW, KOLKATA 700 071. APPEARANCES BY: SHRI SUJAY SEN, FCA APPEARING ON BEHALF OF THE ASSESSEE. SMT. RANU BISWAS, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 04, 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 23, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 9, KOLKATA DATED 20.02.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 23.03.2009 DECLARING A TOTAL INCOME OF RS. 97,610/-. IN THE ASSESSMENT COMPLETED U/S 147/143(3) VIDE AN ORDER DATED 29.12.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 2,05,140/- AFTER MAKING AN ADDITION OF RS. 1,07,525/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF INCOME ALLEGEDLY REDUCED BY THE ASSESSEE THROUGH MISUSE OF CLIENT CODE MODIFICATION. 3. AGAINST THE ORDER PASSED BY THE AO U/S 147/143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE 2 I.T.A. NO. 729/KOL/2019 ASSESSMENT YEAR: 2009-10 SHRI RAJESH SONI WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DATED 20.02.2019 PASSED EX- PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) ON FOUR OCCASIONS AND AT LEAST ON THREE OCCASIONS, ADJOURNMENT WAS SOUGHT BY THE ASSESSEE BY FILING THE APPLICATION IN WRITING. HE HAS CONTENDED THAT THE LD. CIT(A) HOWEVER DID NOT ACCEPT THE APPLICATION FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE HEARING FIXED FINALLY ON 19.02.2019 AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WITHOUT GIVING ANY FURTHER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. HE HAS CONTENDED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) THUS IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND THIS POSITION CLEARLY APPARENT FROM THE IMPUGNED ORDER OF THE LD. CIT(A) IS NOT DISPUTED EVEN BY THE LEARNED DR. MOREOVER, AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. I, THEREFORE, 3 I.T.A. NO. 729/KOL/2019 ASSESSMENT YEAR: 2009-10 SHRI RAJESH SONI SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD OCTOBER, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 23/10/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SHRI RAJESH SONI, C/O. M/S. SALARPURIA JAJODIA & CO., 7, CHITTARANJAN AVENUE, KOLKATA 700 072. 2. ITO, WARD 31(4), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA