Nellimarla Jute Mills Co. Ltd., Kolkata V. ITO, WD-1(2), KOLKATA, Kolkata

ITA 865/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1033 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.865/KOL/2016 ASSESSMENT YEAR:2009-10 NELLIMARLA JUTE MILLS CO. LTD., 3A,SHAKESPEARE SARANI, KOLKATA-71 [ PAN NO.AABCN 5591 M ] / V/S . INCOME TAX OFFICER, WARD-1(2),P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHARJEE, ADDL. CIT-DR /DATE OF HEARING 31-10-2017 /DATE OF PRONOUNCEMENT 10-11-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DATED 29.03.2016 . ASSESSMENT WAS FRAMED BY ITO WARD-1(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31.1 2.2011 FOR ASSESSMENT YEAR 2009-10. SHRI SUBASH AGARWAL, ADVOCATE APPEARED ON BEHALF OF ASSESSEE AND SHRI ARINDM BHATTACHARYEE, LD. DEPARTMENTAL REPRESENTATI VE APPEARED ON BEHALF OF REVENUE. ITA NO.865/KOL/2016 A.Y. 2009 -10 NELLIMARLA JUTE MILLS CO. LTD VS. ITO, WD-1(2 ) KOL PAGE 2 2. THE FIRST ISSUE RAISED BY ASSESSEE IS THAT LD CI T(A) ERRED IN CONFIRMING THE ORDER OF AO WITHOUT PROVIDING REASONABLE OPPORT UNITY OF BEING HEARD. 3. AT THE OUTSET, IT WAS OBSERVED LD. CIT(A) DISMIS SED THE APPEAL FILED BY THE ASSESSEE EX PARTE ON 29.03.2016. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILED AN APPEAL BEFORE US AND SUBMI TTED IN GROUNDS OF APPEAL THAT A VERBAL REQUEST WAS MADE TO THE LD. CIT(A) TO ADJOURN THE HEARING ON 30- 3-2016 ON THE GROUND THAT ANOTHER CASE OF THE ASSES SEE WAS FIXED FOR THE HEARING. BUT THE LD. CIT(A) INADVERTENTLY PASSED THE EX PARTE ORDER ON 29.03.2016. THE LD. COUNSEL FOR ASSESSEE PRODUCED THE COPY OF THE O RDER OF LD. CIT-A OF OTHER CASE OF THE ASSESSEE PERTAINING TO THE AY 2008-09 W HICH IS PLACED ON RECORD. THE OTHER CASE OF THE ASSESSEE WAS DECIDED BY THE L D. CIT(A) ON 31-03-2016. AS SUCH, IT WAS PLEADED BEFORE US THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE AND ACCO RDINGLY IT WAS PRAYED TO RESTORE THE MATTER TO THE LD. CIT-A FOR FRESH ADJUD ICATION. THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RESTORED TO LD. CIT-A FO R FRESH ADJUDICATION IN ACCORDANCE WITH THE LAW. 4. ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIONING AN Y REASON FOR CONFIRMING THE SAME ON MERITS. THE PROVISIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN W RITING WITH REASONING. BUT WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO C ONFIRMED THE ORDER OF AO WITHOUT DECIDING THE SAME ON MERIT. WE ALSO FIND IN THE INTEREST OF JUSTICE AND FAIR PLAY LD. CIT(A) SHOULD HAVE GIVEN ANOTHER OPPO RTUNITY TO THE ASSESSEE TO APPEAR BEFORE HIM TO EXPLAIN HIS POINTS OF CONTENTI ONS. THEREFORE, IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO REMIT THE MATTER BAC K TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY AS SESSEE ON MERIT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. IT IS NEEDLESS TO SAY THAT THE ASSESSEE SHOULD CO-OPERATE IN THE APPELLATE PROCEED ING AS AND WHEN CALL BY LD. ITA NO.865/KOL/2016 A.Y. 2009 -10 NELLIMARLA JUTE MILLS CO. LTD VS. ITO, WD-1(2 ) KOL PAGE 3 CIT(A). HENCE, THIS GROUND OF ASSESSEES APPEAL STA NDS ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, FOR STATISTICAL PURPOSE THE APPEAL O F ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10/11/2017 SD/- SD/- ( % ') ( ') (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S ) - 10/11/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-NELLIMARLA JUTE MILLS COMMISSION. LTD. 3 A, SHAKESPEARE SARANI, KOL KATA-71 2. /RESPONDENT-INCOME TAX OFFICER, WARD-1(2), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQU ARE, KOLKATA 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . %%, , , / DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO ,,