Jai Shree Balaji Fat & Oils Pvt. Ltd., Kolkata V. ITO, Ward 7(4), Kolkata, Kolkata

ITA 770/KOL/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0708 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 15 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: 18-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN CITSR
• Assessee Lawyers: MANISH TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice
• 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.770/KOL/2017 (ASSESSMENT YEAR: 2012-13) JAI SHREE BALAJI FAT & OILS PVT. LTD. PARIJAT BUILDING, 2 ND FLOOR, R.NO.A06 24A, SHAKESPEARE SARANI, KOLKATA 700 017. VS. ITO, WARD-7(4), KOLKATA P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AABCJ 1298 B ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI MANISH TIWARI, FCA REVENUE BY : SHRI SALLONG YADEN, 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.863/CIT(A)-3/ITO, WD-&(4)/KOL/15-16, DATED 14.02.2017, 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 26.03.2015. 3. 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 STATED BEFORE US THAT ASSESSEE COULD NOT APPEAR BEFORE THE LD. CIT(A) ON 30.01.2017, BECAUSE OF THE CIRCUMSTANCES WERE BEYOND HIS CONTROL. THEREAFTER, THE LD. CIT(A) DID NOT GIVE FURTHER OPPORTUNITY FOR HEARING, THEREFORE, IT IS AGAINST THE PRINCIPLE OF NATURAL JAI SHREE BALAJI FAT & OILS PVT. LTD. ITA NO.770/KOL/2017 ASSESSMENT YEAR: 2012-13 2 JUSTICE, HENCE THE MATTER SHOULD BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. THE LD. DR FOR THE REVENUE REFRAINED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 4. WE NOTE THAT LD. CIT(A) HAS PASSED THE EX PARTE ORDER OBSERVING THE FOLLOWING: 2. THE CASE WAS FIXED FOR HEARING ON 30.01.2017. 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. IT SEEMS TO US THAT LD. CIT(A) DID NOT GIVE ENOUGH OPPORTUNITY FOR HEARING. THE CASE WAS FIXED FOR HEARING ONLY ON 30.01.2017. THE LD. CIT(A) OUGHT TO HAVE GIVEN MORE OPPORTUNITY FOR HEARING. 5. 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. 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. 6. 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 ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD. CIT(A). 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 JAI SHREE BALAJI FAT & OILS PVT. LTD. ITA NO.770/KOL/2017 ASSESSMENT YEAR: 2012-13 3 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- JAI SHREE BALAJI FAT & OILS PVT. LTD 2. / THE RESPONDENT.- ITO, WARD-7(4), 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 .