Dunson Byapar Pvt. Ltd., , Kolkata V. ITO, Ward - 2(2), Kolkata , Kolkata

ITA 85/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6037 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record
• Section: 143(3); 131; 68

Judgement Text

ITA NO. 85/KOL/2018 M/S. DUNSON BYAPAR P.LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D , KOLKATA (BEFORE SHRI A.T. VARKEY , J.M. & DR.A.L.SAINI, A.M.) ITA NO. 85 /KOL/201 8 : ASSTT. YEAR : 201 2 - 13 M/S. DUNSON BYAPAR PVT. LTD. PAN: AABCD 1680P VS I.T.O WARD 2(2), KOLKATA ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI MIRAJ D. SHAH, LD.AR RESPONDENT BY : SHRI RADHEY SHYAM, CIT, LD.DR DATE OF HEARING : 31 - 12 - 2018 DATE OF PRONOUNCEMENT: 23 - 01 - 2019 ORDER PER DR. A.L.SAINI, A. M .: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PERTAINING TO ASSESSMENT YEAR 201 2 - 13 , IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) - 7 , KOLKATA , IN APPEAL NO. 286 /CIT(A) - 7 / KOL/WARD - 2(2)/16 - 17 , DATED 13 - 09 - 2017 , WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME - TAX ACT, 1961 (IN SHORT, THE ACT ), DATED 2 7 - 0 3 - 201 5 . 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSE E POINTED OUT THAT DURING THE ASSESSMENT PROCEEDINGS ASSESSE COMPANY AND ITS STAFF WERE SHIFTED TO RAIPUR , T HEREFORE, THE ASSESSE E REQUESTED THE AO THROUGH A LETTER D A T ED 17 - 02 - 2015 TO TRANSFER ITS ASSESSMENT PROCEEDINGS AND ASSESSMENT RECORDS TO DCIT 1(1), RAIPUR. RELEVANT PORTION OF ASSESSMENT ORDER, WHIC H WITNESSED THE SAID COMMUNICATION , IS REPRODUCED BELOW: - ACCORDINGLY STATUTORY NOTICES U/S 143 ( 2 ) AND 142 (1) WERE ISSUED AND SERVED ON THE ASSESSEE. SRI RAJESH AGARWAL APPEARED, AS A / R OF THE ASSESSEE. DURING THE PREVIOUS YEAR T HE ASSESSEE COMPANY HAD RECEIVED LARGE SHARE APPLICATION MONEY ALONG WITH PREMIUM. SUMMONS U/S 131 WAS SERVED ON THE DIRECTOR OF THE A S SESSEE COMPANY ITA NO. 85/KOL/2018 M/S. DUNSON BYAPAR P.LTD 2 AND A FINAL SHOW CAUSE WAS ALSO SERVED ON THE ASSESSEE, REQUESTING TO EXPLAIN THE REASON AND COMPLETE DETAILS OF SHARE PREMIUM MON EY RECEIVED . THE SCHEDULED DATE OF HEARING WAS FIXED ON 18.02.2015. A LETTER WAS RECEIVED FROM THE ASSESSEE ON 17.02.2015, REQUESTING FOR TRANSFER OF PENDING PROCEEDINGS TO DCIT 1 (1), RAIPUR. THE A / R, SRI RAJESH AGARWAL ALSO APPEARED ON 17.02.2015. IT W AS POINTED OUT TO HIM THAT THE PAN WISE JURISDICTION WAS LYING WITH THE UNDERSIGNED AND THE PROCESSING OF LATEST RETURNS U/S 143 (1) (FOR THE ASSESSMENT YEAR 2013 - 14) WAS ALSO DONE ON AST MODULE, UNDER THE JURISDICTIONAL CODE OF THE ERSTWHILE ITO, WARD 6 (1), KOLKATA . EVEN THE RETURN FOR THE ASSESSMENT YEAR 2014 - 15 HAS ALSO BEE N E - FILED IN THE JURISDICTIONAL CODE OF THE UNDERSIGNED. THE ASSESEEE ALSO FAILED TO FURNISH ANY NO OBJECTION FROM THE DCIT - 1 (1), RAIPUR, REGARDING ACCEPTANCE OF THE JURISDICTION O F THE ASSESSEE. 3. FROM THE ABOVE, WE NOTE THAT THE ASSESSE WAS PARTICIPATING IN THE ASSESSMENT PROCEEDINGS. WE NOTE THAT ASSESSEE WAS ORIGINALLY BASED IN KOLKATA AND THEN ITS REGISTERED OFFICE WAS TRANSFERRED TO RAIPUR AND THUS THE ASSESSEE WAS BASED IN RAIPUR AND THE ASSESSEE DID NOT HAVE ANY OPERATIONAL OFFICE IN KOLKATA THEREFORE, DURING THE ASSESSMENT PROCEEDINGS, THE NOTICES FOR HEARINGS WERE NOT SERVED ON THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS , THE ASSESSE E REQUESTED THE AO TO TRANSFER T HE RECORDS OF ASSESSMENT PROCEEDINGS TO DCIT - 1(1), RAIPUR , AS THE ASSESSE E COMPANY `S OFFICE AND ITS DIRECTOR WERE SHIFTED OVER THERE , HOWEVER, THE AO IGNORED IT AND PASSED THE ASSESSMENT U/S. 143(3) OF THE ACT. 4. WE NOTE THAT THE ASSESSE COULD NOT REPR ESENT ITS CASE DURING THE ASSESSMENT PROCEEDINGS AND THE AO HAS IGNORED THE REQUEST OF THE ASSESSEE TO TRANSFER THE ASSESSMENT PROCEEDINGS/ASSESSMENT RECORDS FROM KOLKATA TO DCIT 1(1), RAIPUR AND THE ASSESSMENT WAS FRAMED WITHOUT EFFECTIVE PARTICIPATION ON BEHALF OF THE ASSESSEE. SINCE ITS OFFICE WAS SHIFTED AT RAIPUR . THUS, THE ASSESSE E DID NOT GET OPPORTUNITY TO REPRESENT ITS CASE , AT ASSESSMENT STAGE BEFORE THE AO . THEREFORE WE ARE OF THE VIEW THAT ASSESSMENT WAS FRAMED IN VIOLATION OF THE PRINCIPLE O F NATURAL JUSTICE AND THEREFORE, T HIS ISSUE NEEDS TO BE REMITTED BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE DEN EVO SINCE NO PROPER OPPORTUNITY WAS GIVEN TO ASSESSEE, ITA NO. 85/KOL/2018 M/S. DUNSON BYAPAR P.LTD 3 AT THE ASSESSMENT STAGE TO DISCHARGE THE ONUS CAST UPON IT U/S 68 OF THE ACT . SO , WE F IND FORCE IN THE SUBMISSIONS OF THE LD.AR THAT THE ASSESSE E DID NOT GET PROPER OPPORTUNITY TO SUBSTANTIATE ITS CASE BEFORE THE AO DURING ASSESSMENT PROCEEDINGS. THEREFORE , WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO REPR ESENT HIS CASE BEFORE LD ASSESSING OFFICER . FOR THAT, WE RELY ON THE JUDGMENT OF THE HONBLE SUPREME COURT ( THREE JUDGE BENCH) IN THE CASE OF TIN BOX VS. CIT REPORTED IN 249 ITR 216 (SC), WHEREIN IT WAS HELD AS UNDER: - IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT - FINDING AUTHORITY, THAT READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUBMISSION THAT THE INCOME - TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE 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 GIV EN A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 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 ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUES TION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. ITA NO. 85/KOL/2018 M/S. DUNSON BYAPAR P.LTD 4 THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE . THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSIDERATION, AS AFORESTATED . 5 . RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) , AND TAKING INTO CONSIDERATION THE FACT THAT ASSESSEE DID NOT GET OPPORTUNITY TO REPRESENT HIS CASE AT ASSESSMENT STAGE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE AO FOR DENEVO ASSESSMENT AND DECIDE THE MATTER IN ACCORDANCE WITH LAW AFTER GIVI NG THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 - 01 - 2019 SD/ - SD/ - ( A.T VARKEY ) (DR. A.L.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23 - 01 - 2019 *PRADIP (SR.PS) COPY OF THE ORDER FORWA RDED TO: 1. THE ASSESSEE / APPELLANT : M/S. DUNSON BYAPAR PVT. LTD C/O D.J. SHAH & CO. KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA - 700 020. . 2 THE RESPONDENT/ DEPARTMENT: ITO< WARD 2(2), KOLKATA, AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQUARE, KOLKATA - 700 069. 3. THE CIT, 4. THE CIT(A) - , 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR ITAT, KOLKATA BENCHES