M/s Overseans Trading & Suppliers Corporation, Kolkata V. ITO, WD-33(3), KOLKATA, Kolkata

ITA 760/KOL/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5130 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 29-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 147; 148

Judgement Text

I.T.A. NO. 760/KOL./2015 ASSESSMENT YEAR: 1999-2000 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 760/KOL/ 2015 ASSESSMENT YEAR: 1999-2000 M/S. OVERSEAS TRADING & SUPPLIERS CORPORATION,..... ...................APPELLANT 210/1A, RASH BEHARI AVENUE, KOLKATA-700 029 [PAN : AAAFO 9395 A] -VS.- INCOME TAX OFFICER,................................ ......................RESPONDENT WARD-33(3), KOLKATA, 10, MIDDLETON ROW, KOLKATA-700 071 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, FOR THE ASSESSEE SHRI PINAKI MUKHERJEE, JCIT, SR. D.R., FOR THE DEPA RTMENT NATE OF CONCLUDING THE HEARING : DECEMBER 14, 2015 DATE OF PRONOUNCING THE ORDER : JANUARY 06, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA DAT ED 26.02.2015, WHEREBY HE DISMISSED THE APPEAL FILED BY THE ASSESE SE BEFORE HIM EX PARTE . 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS CARRYING ON THE BUSINESS AS A GOVERNMENT CONTRACTOR . THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION FILED BY IT ON 28.09.2000 DECLARING TOTAL INCOME OF RS.1,90,353/- WAS ORIGINA LLY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) ON 11.12.200 1. SUBSEQUENTLY, ON THE BASIS OF INFORMATION MADE AVAILABLE IN THE ASSE SSMENT RECORD FOR A.Y. 2001-02, THE ASSESSMENT FOR THE YEAR UNDER CONSIDER ATION WAS REOPENED BY THE ASSESSING OFFICER AND A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM I.T.A. NO. 760/KOL./2015 ASSESSMENT YEAR: 1999-2000 PAGE 2 OF 4 ON 21.03.2006 AFTER RECORDING THE REASONS. IN THE A SSESSMENT COMPLETED IN PURSUANCE OF THE SAID NOTICE UNDER SECTION 143(3 ) READ WITH SECTION 147 VIDE AN ORDER DATED 30.11.2006, CAPITAL GAIN AR ISING OUT OF THE SALE OF TWO FLATS BY THE ASSESSEE WAS RE-COMPUTED BY THE AS SESSING OFFICER AT RS.4,70,733/- AND THE SAME WAS TAXED IN THE HANDS O F THE ASSESSEE AS SHORT-TERM CAPITAL GAIN INSTEAD OF LONG-TERM CAPITA L GAIN. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS), WHO DISMISSED THE SAME AFTER RECORDING HIS OBSERVATIONS AS UNDER:- NOTICE UNDER SECTION 250 WAS ISSUED TO THE APPELLA NT BY WHICH DATE OF HEARING WAS FIXED ON 11.03.2013, 07.11.2013, 20.12.2013, 24.07.2014, 21.10.2014, 13.11.2014 RESPECTIVELY. FRESH NOTICES WERE ISSUED BY WHICH THE DATE OF HEARING WAS FIXED ON 14.11.2014, 22.01.2015, 05.07.2015 AND 24.02.2015 RESPECTIVELY. HOWEVER, NOBODY ATTENDED ON THE DATE OF HEARING. TH OUGH THERE WAS SOME WRITTEN SUBMISSION FOUND ON RECORD B UT THE SAME IS WITHOUT ANY SUPPORTING DOCUMENTS. THERE FORE, THE APPEAL IS DECIDED ON MERIT ON THE BASIS OF DETA ILS/ MATERIAL AVAILABLE ON RECORD. SINCE, THERE WAS NO COMPLIANCE DURING THE APPELLATE PROCEEDINGS, THERE WAS NO NEW FACT/ DETAILS AVAILABLE FOR CONSIDERATION. U NDER THESE CIRCUMSTANCES, I DO NOT FIND ANY INFIRMITY IN THE AOS ORDER. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE APPEAL FILED BY THE ASSESSEE ON 1 5.01.2007 WAS EARLIER ALSO TAKEN UP FOR HEARING BY THE LD. CIT(APPEALS) A ND AT THAT TIME, WRITTEN SUBMISSIONS WERE ALSO FILED BY THE ASSESSEE ON 09.0 4.2007. HE HAS CONTENDED THAT EVEN THOUGH THE LD. CIT(APPEALS) IN HIS IMPUGNED ORDER HAS ACKNOWLEDGED THIS POSITION, HE HAS DISPOSED OF THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT TAKING INTO CONSIDERATION THE WRITTEN I.T.A. NO. 760/KOL./2015 ASSESSMENT YEAR: 1999-2000 PAGE 3 OF 4 SUBMISSIONS OF THE ASSESSEE ALREADY AVAILABLE ON RE CORD AND THIS POSITION CLEARLY EVIDENT FROM THE RELEVANT RECORD HAS NOT BE EN DISPUTED BY THE LD. D.R. A COPY OF THE WRITTEN SUBMISSION DATED 09.04.2 007 FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) IS ALSO PLACED ON RECORD BEFORE ME BY THE LD. COUNSEL FOR THE ASSESSEE AND A PERUSAL O F THE SAME SHOWS THAT EVEN THOUGH A DETAILED SUBMISSION WAS MADE BY THE A SSESSEE IN WRITING ON THE ISSUES INVOLVED IN HIS APPEAL ON MERIT, THE LD. CIT(APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS IMPUG NED ORDER PASSED EX PARTE WITHOUT TAKING INTO CONSIDERATION THE SAID SUBMISS IONS AND WITHOUT GIVING ANY FINDING ON THE ISSUES INVOLVED IN THE AP PEAL OF THE ASSESSEE ON MERIT. AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(APPEALS) IS REQUIRED TO PASS AN ORDER DISPOSING OF THE APPEAL OF THE ASSESSEE IN WRITING BY STATING THE POINTS FOR DETER MINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. THE IMPUGN ED ORDER OF THE LD. CIT(APPEALS) THUS IS NOT IN ACCORDANCE WITH THE REL EVANT PROVISIONS OF LAW. I, THEREFORE, SET ASIDE THE SAME AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH AFTE R GIVING THE ASSESESE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AN D DISPOSING OF THE APPEAL OF THE ASSESSEE BY PASSING A WELL REASONED A ND WELL DISCUSSED ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 06, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 6 TH DAY OF JANUARY, 2016 COPIES TO : (1) M/S. OVERSEAS TRADING & SUPPLIERS CORPORATION, 210/1A, RASH BEHARI AVENUE, KOLKATA-700 029 I.T.A. NO. 760/KOL./2015 ASSESSMENT YEAR: 1999-2000 PAGE 4 OF 4 (2) INCOME TAX OFFICER, WARD-33(3), KOLKATA, 10, MIDDLETON ROW, KOLKATA-700 071 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-9, KOLKAT A (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.