Pratush Patodia, Kolkata V. ITO, WD-33(3), KOLKATA, Kolkata

ITA 857/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4451 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2016
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: R C JHAWER
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI S.S.VISWANETHRA RAVI, JM & D R.ARJUN LAL SAINI, AM ] ITA NO.857/KOL/2016 ASSESSMENT YEAR : 2010-11 PRATUSH PATODIA -VERSUS- I.T.O., WARD-33(3), KOLKATA KOLKATA [PAN: AFKPP6757Q] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI R.C.JHAWER, FCA FOR THE RESPONDENT : SHRI RAJAT KUMAR KUREEL, JCIT DATE OF HEA RING : 26.09.2016 DATE OF PRONOUNCEMENT : 28.09.2016. ORDER PER DR.ARJUN LAL SAINI, AM THE CAPTIONED APPEAL FILED BY THE ASSESSE E PERTAINING TO A.Y.2010-11, IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSION ER OF INCOME TAX (APPEALS) -9, KOLKATA, IN APPEAL NO.254/CIT(A)-9/WD-33(3)/2014-1 5/KOL, DATED 29.02.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE LD. ASSESSING OFFICER U/S 143(3) OF INCOME TAX ACT, 1961 (IN SHORT, THE ACT) DATED 28.0 3.2013. 2. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE R ETURN OF INCOME FOR A.Y.2010-11, WAS E-FILED BY THE ASSESSEE ON 13.10.2010 DECLARING A T OTAL INCOME OF RS.10,02,187/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. LATER O N THE CASE WAS SELECTED FOR SCRUTINY U/S 143(3) OF THE ACT AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITIONS. AGGRIEVED FROM THE ORDER OF THE LD. AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS ALSO CONFIRMED THE ACTION O F THE AO BY OBSERVING THE FOLLOWINGS :- IN THIS CASE, NOTICE U/S 250 WAS ISSUED ON 10/02/2 015 BY WHICH DATE OF HEARING WAS FIXED ON 27/02/2015 HOWEVER, NEITHER ANYBODY ATTEND ED NOR ANY WRITTEN REPLY WAS RECEIVED ON THE DATE OF HEARING. THEREFORE, FRESH N OTICES DATED 25/05/2015,02/11/2015,28/12/2015,18/01/2016 & 19/02 /2016 RESPECTIVELY WERE ISSUED ITA NO.8 57/KOL/2016 PRATUSH PATODIA A..Y.2010-11 2 BUT THERE WAS NO COMPLIANCE ON THE PART OF THE APPE LLANT. SINCE THERE IS NO COMPLIANCE DURING THE APPELLANT PROCEEDINGS AND THERE IS NO NE W FACT/DETAILS AVAILABLE FOR CONSIDERATION, I DO NOT FIND ANY INFIRMITY IN THE A OS ORDER. THEREFORE, APPEAL IS DISMISSED. 3. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT (A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. ALTHOUGH IN THIS APPEAL THE ASSESSEE HAS TAK EN MULTIPLE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE GRIEVANCE OF THE ASSESSEE HAD BEEN CONFINED TO ONLY GROUND NO.1 WHICH RELATES TO AN EX-PARTE ORDER MADE BY THE LD. CIT(A) WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LD. A R FOR THE ASSESSEE HAS STATED THAT NOTICE U/S 250 OF THE ACT WAS ISSUED ON THE ASSESSE E ON DATED 10.02.2015 BY WHICH THE DATE OF HEARING WAS FIXED ON 27.02.2015. THE ASSESS EE FILED AN ADJOURNMENT PETITION BEFORE THE LD. CIT(A) ON DATED 24.02.2015, SEEKING AN ADJOURNMENT. THE LD. CIT(A) DID NOT CONSIDER THE ADJOURNMENT APPLICATION OF THE ASSESSEE. HOWEVER, THE LD. CIT(A) ISSUED FRESH NOTICES FOR HEARINGS BUT NONE OF THEM SERVED ON THE ASSESSEE. THE LD. AR FOR THE ASSESSEE HAS EXPLAINED THAT IN RESPECT OF F RESH NOTICES ON VARIOUS DATES, SUCH AS 25.05.2015, 07.11.2015, 28.11.2015, 18.01.2016 AND 19.02.2016 ETC, FOR THAT THE ASSESSEE STATED THAT HE DID NOT RECEIVE THEM. HAD THE SSESSEE RECEIVED THESE NOTICES FROM THE INCOME TAX DEPARTMENT, HE WOULD HAVE PRESE NTED BEFORE THE LD. CIT(A). THEREFORE ORDER PASSED BY THE LD. CIT(A) IS IN VIOL ATION OF NATURAL JUSTICE AND WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEAR D. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRE SENTATIVE FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO AND THE LD. CIT(A),WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA, AND IS NOT BEIN G REPEATED FOR THE SAKE OF BREVITY. THE LD. DR ALSO SUBMITTED THAT AFTER TAKING THE FIRST A DJOURNMENT THE ASSESSEE HAD NEARLY ONE YEAR TIME BUT THE ASSESSEE DID NOT APPROACH THE LD. CIT(A) WITHIN THAT PERIOD TO FOLLOW UP THE MATTER FROM HIS SIDE. THEREFORE LD CI T (A) CONSIDERED IT THAT THE ASSESSEE WAS NOT INTERESTED TO PURSUE THE APPEAL, H ENCE HE WAS RIGHT IN DISMISSING THE APPEAL. ITA NO.8 57/KOL/2016 PRATUSH PATODIA A..Y.2010-11 3 6. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD , WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSI ONS OF THE LD. AR FOR THE ASSESSEE , AS THE PROPOSITIONS CANVASSED BY THE LD. AR FOR THE A SSESSEE ARE SUPPORTED BY THE FACTS NARRATED ABOVE. AS THE LD. AR FOR THE ASSESSEE HA S EXPLAINED THAT THE ASSESSEE HAS FILED AN ADJOURNMENT APPLICATION AND TOOK AN ADJOUR NMENT AND AFTER THAT THE ASSESSED DID NOT RECEIVE ANY NOTICE FROM THE INCOME TAX DEPA RTMENT, IN SPITE OF THIS, THE LD. CIT(A) HAS PASSED THE ORDER WITHOUT GIVING AN OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE WE ARE OF THE VIEW THAT THE ASS ESSEE DID NOT GET SUFFICIENT OPPORTUNITY OF BEING HEARD. HENCE, WE ARE OF THE VI EW TO REMIT THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE CASE AFRESH AF TER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THEREFORE WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT CASE BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE T HE CASE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AS DISC USSED SUPRA. 7. IN THE RESULT, ALL THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.09.2016. SD/- SD/- [S.S.VISWANETHRA RAVI] [DR.ARJUN LAL SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28.09.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . PRATUSH PATODIA, R.C.JHAWER & CO., 7A, BENTICK STRE ET, KOLKATA-700001. 2 I.T.O., WARD-33(3), KOLKATA. 3 . C.I.T.(A)- 9, KOLKATA 4. C.I.T., 11, KOL KATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO.8 57/KOL/2016 PRATUSH PATODIA A..Y.2010-11 4