Desire Agro Resorts Development Pvt. Ltd., Kolkata V. ITO, Ward - 12(2), Kolkata, Kolkata

ITA 8/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48151 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 26-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2010
• Court: TRIBUNAL
• Department Lawyers: A SINGH
• Assessee Lawyers: S CHOUDHURY; T CHAKRABORTY
• Keywords: Opportunity of being heard; Reasonable cause; Set aside

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE . . . . . . . . , , , , ! ! ! ! /AND ' #!' , $% ) [BEFORE HONBLE SHRI G. D. AGRAWAL, V.P. & HONBLE SHRI MAHAVIR SINGH, JM] !& !& !& !& / I.T.A NO. 08/KOL/2010 #'( )* #'( )* #'( )* #'( )*/ // / ASSESSMENT YEAR: 2006-07 DESIRE AGRO RESORTS DEVELOPMENT -VS- INCOME-TAX O FFICER, WD-12(2), KOLKATA PVT. LTD. (PAN AABCD 7722 J) ( ,- /APPELLANT ) (./,-/ RESPONDENT ) FOR THE APPELLANT: S/SHRI S. CHOUDHURY & T. CHAKRABORTY FOR THE RESPONDENT: SHRI A. SINGH $01 / ORDER PER MAHAVIR SINGH, JM ( ' ' ' ' #!' #!' #!' #!' , , , , $% $% $% $% ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-XII, KOLKATA IN APPEAL NO. 558/XII/12(2)/08-09 VIDE DATED 30.07.200 9. THE ASSESSMENT WAS FRAMED BY ITO, WD-12(2), KOLKATA U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DATED 31.12.2008. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL IS BARRED BY LIMITATION BY 44 DAYS AND THE ASSESSEE FILED CONDONATION PETITION AS WELL AS AFFI DAVIT FROM ONE OF THE DIRECTORS STATING THE REASON THAT BOTH THE DIRECTORS WERE MEDICALLY SICK. THE RELEVANT AVERMENTS IN THE AFFIDAVITS READ AS UNDER: 1. THAT I RECEIVED THE ORDER OF LD. COMMISSIONER O F INCOME TAX (APPEALS)-XII/KOL ON 19 TH SEPTEMBER, 2009, SO THIS APPEAL SHOULD HAVE FILED BEFORE THE 19 TH NOVEMBER, 2009. 2. THAT OUR COMPANY HAS GOT TWO DIRECTORS NAMELY MY SELF AND SRI SANJOY KUMAR SHAW. 3. THAT BOTH OF US WERE PHYSICALLY SICK AND UNDER M EDICAL ADVICE WERE UNDER REST, COPIES OF CERTIFICATES OF ATTENDING DOCTORS ARE ENC LOSED. 4. THAT I AM AN INDIAN NATIONAL. THAT THE ABOVE MADE FOREGOING PARAGRAPHS ARE TRUE T O THE BEST OF MY KNOWLEDGE AND BELIEF AND I SIGN THIS AFFIDAVIT AT COURT PREMISES. THAT I EARNESTLY PRAY TO YOU TO CONDONE 44 DAYS DEL AY OF FILING OF THIS APPEAL WHICH I HOPE YOU WILL BE KIND ENOUGH TO GRANT. ON GOING THROUGH AVERMENTS MADE IN THE AFFIDAVIT, W E ARE CONVINCED THAT THERE IS REASONABLE CAUSE FOR FILING THE DELAYED APPEAL AND WE CONDONE THE SAME AND ADMIT THE APPEAL FOR HEARING. 2 ITA 08/K/2010 DESIRE AGRO RESORTS DEV. A.Y.06-07 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT CIT(A) HAS DECIDED THE ISSUE EX PARTE AND THE RELEVANT FINDINGS OF CIT(A) READS AS UNDER: 3.2. IN THESE CIRCUMSTANCES, I HAVE NO OTHER ALTE RNATIVE EXCEPT TO DISPOSE THE APPEAL BASED ON THE MATERIAL AVAILABLE ON RECORD. I FIND EXCEPT A BRIEF STATEMENT3 OF FACTS AND GROUNDS OF APPEAL THERE IS NO OTHER SUPPORTING MATE RIAL/EVIDENCES OR SUBMISSIONS AVAILABLE ON RECORD TO SUPPORT THE GROUNDS TAKEN UP BY THE APPELLANT. EVEN THE SUBMISSIONS FURNISHED ON 15.5.09 ARE ONLY GENERAL I N NATURE. 3.3. IN VIEW OF THE FACTS MENTIONED ABOVE, I AM OF THE OPINION THAT THE APPELLANT HAS NO INTEREST TO PURSUE THE APPEAL BY ADDUCING NECESSARY DOCUMENTARY EVIDENCES/RELEVANT MATERIALS TO SUPPORT THE GROUNDS RAISED IN THE APPE AL. AS SUCH THE APPELLANT HAS FAILED TO SUPPORT THE GROUNDS RAISED IN ITS APPEAL. ACCOR DINGLY, I DISMISS ALL THE GROUNDS TAKEN UP BY THE APPELLANT FOR WANT OF ANY SUPPORTING EVID ENCES IN FAVOUR OF GROUNDS RAISED IN APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE, IN VIEW OF THI S, STATED THAT THE ISSUE MAY BE SET ASIDE FOR GIVING REASONABLE OPPORTUNITY OF BEING HEARD AN D FOR FILING DETAILS BEFORE HIM. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED COMPLETE DETAIL S BEFORE US IN ITS VOLUMINOUS PAPER BOOK WITH ANNEXURE A TO L. THE LD. COUNSEL FOR THE ASSESSEE FURTHER MADE A REQUEST THAT THIS MATTER BE SET ASIDE TO ASSESSING OFFICER AS THESE DETAILS WER E TO BE EXAMINED BY THE ASSESSING OFFICER AND AS THESE ARE BEING FILED BEFORE THE TRIBUNAL FO R THE FIRST TIME, ON QUERY FROM THE BENCH THE LD. DR HAS NOT OBJECTED TO THE SETTING ASIDE THE IS SUE TO THE ASSESSING OFFICER. 5. AFTER HEARING BOTH THE SIDES AND PERUSING THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE, IN VIEW OF CIT(A)S ORDER THAT NO REASONABLE OPPORTUNI TY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE AND MATTER WAS DECIDED ON THE BASIS OF MAT ERIAL AVAILABLE ON RECORD, THE ISSUE IS SET- ASIDE TO THE FILE OF AO. ACCORDINGLY, WE IN THE INT EREST OF JUSTICE AND TO AVOID MULTIPLICITY OF PROCEEDINGS, THIS MATTER IS SET ASIDE TO THE FILE O F ASSESSING OFFICER FOR FRESH CONSIDERATION. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . . . . . . . , , , , ' ' ' ' #!' #!' #!' #!' , $% (G. D. AGRAWAL) (MAHAVIR SINGH) VICE PRESIDENT JUDICIAL MEMBER ( 2 2 2 2) )) ) DATED 26TH DAY OF MAY, 2011 34 #'5 #6 JD.(SR.P.S.) 3 ITA 08/K/2010 DESIRE AGRO RESORTS DEV. A.Y.06-07 $01 7 .##8 08)9- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT DESIRE AGRO RESORTS DEVELOPMENT PVT. LT D., P-85, LAKE ROAD, KOLKATA-29 2 ./,- / RESPONDENT, ITO, WARD-12(2), KOLKATA. 3 . #1' ( )/ THE CIT(A), KOLKATA 4. #1' / CIT, KOLKATA 5 . ?#@ .#' / DR, KOLKATA BENCHES, KOLKATA /8 .#/ TRUE COPY, $01'A/ BY ORDER, ' ! /ASSTT. REGISTRAR .