M/s. White Collar Venture Capital Fund Ltd., Kolkata V. ITO, Wd-7(2), Kolkata, Kolkata

ITA 744/KOL/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0707 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• 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: SALLONG YADEN CITSR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM ITA NO.744/KOL/2017 (ASSESSMENT YEAR: 2012-13) M/S. WHITE COLLAR VENTURE CAPITAL FUND LTD. 41/A, A.J.C. BOSE ROAD, 2 ND FLOOR, ROOM NO.215, KOLKATA 700 017. VS. ITO, WARD-7(2), KOLKATA 5 TH FLOOR, AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AAACW 9190 L ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI A.K. TIBREWAL, FCA REVENUE BY : SHRI SALLONG YADEN, ADDL. CIT(SR. DR) / DATE OF HEARING : 19/07/2018 /DATE OF PRONOUNCEMENT: 03/10/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA IN APPEAL NO.817/CIT(A)-3/ITO,WD-7(2)/KOL/15-16 DATED 08.02.2017 WHICH IN TURN ARISES OUT OF AN ASSESSMENT 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. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT 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. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. M/S. WHITE COLLAR VENTURE CAPITAL FUND LTD. ITA NO.744/KOL/2017 ASSESSMENT YEAR: 2012-13 2 CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER STATING THE FOLLOWING: 2. THE CASE WAS FILED FOR HEARING ON 27.01.2017. THE CASE HAS GONE UNREPRESENTED AND NEITHER ANY FURTHER TIME WAS SOUGHT BY WAY OF AN ADJOURNMENT APPLICATION. THE APPELLANT DOES NOT APPEAR TO BE SERIOUS ABOUT PURSUING THIS APPEAL. HENCE, I PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL ON RECORD. FROM THE ABOVE EX PARTE ORDER OF THE LD CIT(A), IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAD NOT PARTICIPATED IN THE APPELLATE PROCEEDINGS. THE LD CIT(A) HAD GIVEN A LOT OF OPPORTUNITY TO THE ASSESSEE BUT THE ASSESSEE DID NOT APPEAR BEFORE HIM, HENCE THERE WAS NON-COMPLIANCE ON THE PART OF THE ASSESSEE. 4. WE NOTE THAT THE ASSESSEE HAS RAISED GROUND NO.1 STATING AS FOLLOWS: 1.THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-3, KOLKATA ERRED IN PASSING AN EX PARTE ORDER DATED 8 TH FEBRUARY, 2017 U/S 251 OF THE INCOME TAX ACT, 1961 DISMISSING THE APPEAL OF THE APPELLANT WITHOUT ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD. 5. WE ALSO NOTE THAT THE ASSESSING OFFICER HAS PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT, AFTER TAKING INTO ACCOUNT THE DOCUMENTS, EVIDENCES AND EXPLANATION SUBMITTED BY THE ASSESSEE. SINCE THE ASSESSING OFFICER HAS ALREADY TAKEN A VIEW IN THE ASSESSEE`S CASE UNDER CONSIDERATION THEREFORE IT IS WORTHWHILE TO REMIT THE MATTER BACK TO THE FILE OF THE LD CIT(A), AS THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER THROUGH ITS VARIOUS GROUNDS RAISED BEFORE US. MOREOVER, THE LD CIT(A) HAS CO-TERMINUS POWERS, THAT IS, LD CIT(A) HAS ALL THE POWERS AS THE ASSESSING OFFICER HAS, THEREFORE, THE ASSESSEE MAY PROVE HIS BONA FIDE BY SUBMITTING RELEVANT DOCUMENTS/ADDITIONAL EVIDENCES ETC. BEFORE THE FIRST APPELLATE AUTHORITY. HENCE, WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . WE NOTE THAT LD CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND FINDINGS OF LD ASSESSING OFFICER TO DECIDE THE VARIOUS M/S. WHITE COLLAR VENTURE CAPITAL FUND LTD. ITA NO.744/KOL/2017 ASSESSMENT YEAR: 2012-13 3 ISSUES ON MERITS. THEREFORE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT(A). 6. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF 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. THEREFORE, 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. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/10/2018. SD/- (A. T. VARKEY) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:03/10/2018 RS, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- M/S. WHITE COLLAR VENTURE CAPITAL FUND LTD. 2. / THE RESPONDENT.- ITO, WARD-7(2), 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 .