Iris Vintrade Pvt. Ltd., Kolkata V. ITO, Ward 2(3), Kolkata, Kolkata

ITA 733/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5919 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 13-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM ITA NO.733/KOL/2017 (ASSESSMENT YEAR: 2012-13) IRIS VINTRADE PVT. LTD. 85, METCALFE STREET, 3 RD FLOOR, KOLKATA 700 012. VS. ITO, WARD-2(3), KOLKATA AAYAKAR BHAVAN, KOLKATA 700 069. ./ ./PAN/GIR NO. : AACCI 7750 C ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI SUBASH AGARWAL, ADVOCATE REVENUE BY : SHRI P. K. SRIHARI, CIT(DR) / DATE OF HEARING : 17/07/2018 /DATE OF PRONOUNCEMENT: /07/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY LD . COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA IN APPEAL NO.1407/CIT(A)-1/WD- 2(3)/2015-16, DATED 06.10.2016, WHICH IN TURN ARISES OUT OF AN ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 27.03.2015. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REP RESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD C OUNSEL STATED BEFORE US THAT MR. T.K. KEJRIVAL ( FCA) WHO USED TO LOOK THE ASSESSEE` S APPEAL MATTERS, WAS UNABLE TO APPEAR BEFORE LD CIT(A) ON 28.09.2016, AS HE WAS SUFFERING FROM FEVER. AS THE CIRCUMSTANCES WERE BEYOND THE CONTROL OF THE AS SESSEE, THEREFORE, THE LD. COUNSEL CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE REFRAINED FROM OBJECTING THE STAND OF THE LD. COUNSEL. ITA NO.733/KOL/2017 IRIS VINTRADE PVT. LTD ASSESSMENT YEAR: 2012-13 2 4. WE NOTE THAT LD. CIT(A) HAS PASSED THE EX PARTE ORDER OBSERVING THE FOLLOWING: THE HEARING IN THIS CASE WAS INITIALLY FIXED ON 3 1.08.2016 ON THE APPOINTED DATE THE A.R OF THE APPELLANT HAD ATTENDED AND ADJOURNED THE CAS E FOR 07.09.2016, BUT ON THAT DATE NONE HAD ATTENDED. THE CASE WAS AGAIN FIXED ON 28.0 9.2016. BUT ON THAT DATE APPELLANT NEITHER ATTENDED NOR FILED ANY ADJOURNMENT LETTER. UNDER THE CIRCUMSTANCES, IT APPEARS THAT THE APPELLANT DOES NOT WANT TO PURSUE THIS APP EAL, THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. IN THE INSTANT CASE, THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRIC IOUS WITHOUT ANY BASIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS DIS MISSED. AFTER GOING THROUGH THE ABOVE DECISION OF THE LD CI T(A), IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAS PARTICIPATED IN THE APPELLATE PRO CEEDINGS ON 31.08.2016 AND FILED ADJOURNMENT LETTER AND THE CASE WAS ADJOURNED ON 07.09.2016. LATER, THE CASE WAS FIXED ON 28.09.2016 BUT NON-COMPLIANCE WAS MADE ON THE PART OF THE ASSESSEE BECAUSE OF THE REASON, MR. T.K. KEJRIWAL ( FCA), WHO USED TO LOOK THE APPEAL MATTERS OF THE ASSESSEE WAS FEELING SERIOUS ILLNESS DURING THE APPELLATE PROCEEDINGS AND TO SUBSTANTIATE THIS, THE ASSESSEE HAS SUBMITTED BEFORE US AN AFFIDAVIT. THE PARA 4 OF THE SAID AFFIDAVIT READS A S UNDER: 4.THAT MR. T.K. KEJRIWAL (FCA), WHO WAS ENGAGED IN THE INSTANT CASE, WAS UNABLE TO APPEAR BEFORE THE LD CIT(A) ON 28.09.2016 AS HE WAS SUFFERING FROM FEVER. THEREFORE, IT SEEMS TO US THAT LD CIT(A) OUGHT TO HAVE GIVEN MORE OPPORTUNITY TO THE ASSESSEE TO DEFEND HIS CASE, HENCE WE CONSIDER IT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, AS SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE. 5. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSI DERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMME NTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. ITA NO.733/KOL/2017 IRIS VINTRADE PVT. LTD ASSESSMENT YEAR: 2012-13 3 6. WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUG NED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FO R WANT OF PROPER OPPORTUNITY . WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD. CIT(A). T HEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THERE FORE, WE DEED IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FO R STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25/07/20 18. SD/- (A. T. VARKEY) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; PRONOUNCED ON 25/7/2018 DATED : 25./07/2018 SD/- RS, SR. PS SATBEER SINGH GODARA (JM) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- IRIS VINTRADE PVT. LTD 2. / THE RESPONDENT.- ITO, WARD-2(3), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. ! $$% , % , / DR, ITAT, KOLKATA 6. ( / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .