M/s. B.Engineers & Builders Ltd., Bhubaneswar V. ACIT, Circle-2(1), Bhubaneswar

ITA 76/CTK/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7580 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-01-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K GOUTAM
• Assessee Lawyers: DILLIP KUMAR MOHANTY
• Keywords: Opportunity of being heard; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM . / ITA NO. 76 /CTK/201 6 ( / ASSESSMENT YEAR : 20 05 - 20 06 ) M/S B.ENGINEERS & BUILDERS LTD., 72/A, MANCHESWAR IND. ESTATE BHUBANESWAR VS. ACIT, CIRCLE - 2(1), BHUBANESWAR ./ PAN NO. : A AAC B 9689 H ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI DILLIP KUMAR M O HANTY , ADV . / REVENUE BY : SHRI M.K.GOUTAM , CIT - DR / DATE OF HEARING : 2 8 / 01 /20 20 / DATE OF PRONOUNCEMENT : 28 / 01 /20 20 / O R D E R PER L.P.SAHU, AM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST ORDER PASSED BY THE CIT(A ) - 1 , BHUBANESWAR , DATED 10 .0 8 .201 5 FOR THE ASSESSMENT YEAR 200 5 - 200 6 . 2. AS PER THE OFFICE NOTE, THE APPEAL OF THE ASSESSEE IS DELAYED BY 108 DAYS. IN THIS REGARD, LD. AR HAS FILED AN APPLICATION FOR CONDONATION OF DELAY. WE HAVE PERUSED THE APPLICATION OF THE ASSESSEE AND FOUND THAT THE REASON STATED THEREIN ARE SUFFICIENT FOR CONDONATION OF DELAY, TO WHICH LD. DR DID NOT OBJECT. ACCORDINGLY, WE CONDONE THE DELAY OF 108 DAYS IN FILING THE APPEAL AND APPEAL OF THE ASSESSEE IS HEARD FINALLY. ITA NO. 76 /CTK/201 6 2 3. A T THE OUTSET , LD. AR SUBMITTED THAT THE CIT(A) HAS PASSED THE EX - PARTE ORDER WITHOUT PROVIDING ANY OPPORTUNITY OF HEARING. IT WAS ALSO SUBMITTED BY LD. AR THAT AGAINST THE ORIGINAL ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) AND FURTHER AGGRIEVED FROM THE ORDER OR CIT(A) ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL, WHEREIN THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HAS SET ASIDE THE ASSESSMENT WITH DIRECTION TO THE AO TO ASSESS THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE P ROVISIONS OF THE ACT DE NOVO AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD. THEREAFTER THE AO VIDE ORDER DATED 31.12.2007 HAS PASSED THE ASSESSMENT ORDER U/S.144 OF THE ACT. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER DATED 10.08.2015. IT WAS ALSO STRENUOUSLY CONTENDED BY LD. AR THAT THE IMPUGNED ORDER PASSED BY THE CIT(A) IS NOT SUSTAINABLE AS HE HIMSELF HAS PASSED THE ASSESSMENT ORDER U/S.144 OF THE ACT, BEING THE ADDITIONAL COMMISSIONER. THEREFORE, LD. AR REQUESTED THAT THE MATTER MAY KINDLY BE RESTORED TO THE CIT(A) OTHER THAN THE CIT(A) WHO HAS PASSED THE IMPUGNED ORDER. 4. ON THE OTHER HAND, LD. DR FAIRLY CONCEDED TO THE ABOVE ARGUMENTS OF LD. AR OF THE ASSE SSEE. 5 . ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND ON PERUSAL OF THE RELEVANT MATERIAL PLACED IN THE RECORD OF ITA NO. 76 /CTK/201 6 3 THE TRIBUNAL ALONG WITH THE ORDERS OF BOTH THE AUTHORITIES BELOW, AT THE OUTSET, WE FIND THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER EX - PARTE. EVEN ON PERUSAL OF THE ASSESSMENT ORDER, WE FIND THAT THE PERSON, WHO HAS PASSED THE ASSESSMENT ORDER U/S.144 OF THE ACT BEING THE ADDITIONAL COMMISSIONER, HAS ALSO PASSED THE IMPUGNED ORDER BEING THE COMMISSIONER OF INCOME TAX (APPEAL) . THEREFORE, AS PER THE OBJECTION RAISED BY THE LD. AR ASSESSEE DURING THE COURSE OF HEARING AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE RESTORE THE ENTIRE MATTER TO THE FILE OF CIT(A) , OTHER THAN THE COMMISSIONER OF INC OME TAX (APPEAL), WHO HAS PASSED THE IMPUGNED ORDER, AND DIRECT TO PASS A SPEAKING AND REASONED ORDER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, AFTER PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE CIT(A) POSITIVELY FOR EARLY DISPOSAL OF THE CASE. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 01 /20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 28 / 01 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. ITA NO. 76 /CTK/201 6 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - M/S B.ENGINE ERS & BUILDERS LTD., 72/A, MANCHESWAR IND. ESTATE BHUBANESWAR 2. / THE RESPONDENT - ACIT, CIRCLE - 2(1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//