ESS DEE International, Kolkata V. ITO, Ward 34(4), Kolkata, Kolkata

ITA 768/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6471 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 18-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: SOUMITA CHOWDHURY
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , !' . # . $% , & !' ) [BEFORE SHRI P.M. JAGTAP, AM & SHRI A. T. VARKEY, JM] I.T.A. NO. 768/KOL/2017 ASSESSMENT YEAR: 2013-14 ESS DEE INTERNATIONAL COMMERCIAL BUILDING (PAN: AABFE 4334 J) VS. ITO, WARD-34(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 08.02.2018 DATE OF PRONOUNCEMENT 01.05.2018 FOR THE APPELLANT SHRI SOUMITA CHOWDHURY, ADV. FOR THE RESPONDENT SHRI S. DASGUPTA, ADDL. CIT(DR) ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF THE LD. CIT(A)- 10, KOLKATA DATED 20.01.2017 FOR THE ASSESSMENT YEA R 2013-14. 2. AT THE OUTSET, ITSELF IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE ASSESSMENT ORDER PASSED BY THE AO U/S 144 OF THE ACT WHICH IS THE BE ST JUDGMENT ASSESSMENT ORDER OF THE AO. ACCORDING TO THE LD. COUNSEL THE ASSESSEE COULD NOT APPEAR BEFORE THE AO BECAUSE OF NON-RECEIPT OF NOTICES AS WELL AS FOR REASONS BE YOND ITS CONTROL. ACCORDING TO THE LD. COUNSEL THE AO HAS DISALLOWED 30% OF THE EXPENSES C LAIMED BY THE ASSESSEE. IT WAS BROUGHT TO OUR NOTICE THAT THE ASSESSEE FIRM EARNED INCOME FROM BUSINESS OF CLEARING AND FORWARDING AND THE MAIN EXPENSES ARE THE CFS RE NT, CUSTOM DUTY, AAITHC 2 ITA NO.768/KOL/2017 ESS DEE INTERNATIONAL COMMERCIAL BUILDING A.YR.2013-14 2 CHARGES, HANDLING CHARGES AND PORT CHARGES. ON APPE AL THE LD. CIT(A) HAS GIVEN PARTIAL RELIEF TO THE ASSESSEE BY BRINGING DOWN 30% DISALLO WANCE TO 20%. AGGRIEVED THE ASSESSEE IS BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE NOTE THAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO WHICH PRO MPTED HIM TO DISALLOW 30% OF THE OVERALL EXPENSES CLAIMED BY THE ASSESSEE. THE ASSE SSEE IS IN THE BUSINESS OF CLEARING AND FORWARDING. SINCE THE ASSESSEE HAS NOT GET PROP ER OPPORTUNITY BEFORE THE AO, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSMENT H AS TO BE DONE BY THE AO AFTER SCRUTINIZING THE DOCUMENTS AND AFTER HEARING THE AS SESSEE. FOR THAT WE RELY ON THE ORDER OF THE HONBLE THREE JUDGE DECISION OF THE HON'BLE SUPREME COURT IN TIN BOX CO. IN 244 ITR 216 (S C) WHEREIN IT WAS HELD THAT : 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN TH ESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORI TY, THAT READS THUS : 'WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEE'S SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD.' 2. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEF ORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SELLING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASI DE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FR ESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 3. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ?' 3 ITA NO.768/KOL/2017 ESS DEE INTERNATIONAL COMMERCIAL BUILDING A.YR.2013-14 3 4. IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSES-SEE. 5. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLEN GE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF TH E TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHO RITY FOR FRESH CONSIDERATION, AS AFORESTATED. NO ORDER AS TO COSTS. RESPECTFULLY FOLLOWING THE ORDER OF THE HON'BLE SUP REME COURT (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER FOR D E NOVO ADJUDICATION BEFORE AO. THE ASSESSEE IS DIRECTED TO CO-OPERATE WITH THE ASS ESSMENT PROCEEDINGS DILIGENTLY AND THE AO TO PASS SPEAKING ORDER AFTER HEARING THE ASS ESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 01.05.2018 SD/- SD/- (P.M JAGTAP) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 ST MAY, 2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ESS DEE INTERNATIONAL COMMERCIAL BUI LDING, 1 ST FLOOR, 23, N.S. ROAD, KOLKATA-700001. 2 RESPONDENT ITO, WARD-34(4), KOLKATA, AAYAKAR BH AWAN, 110, SHANTIPALLY, KOLKATA-700107. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY