Nitu Agarwal, Kolkata V. A.C.I.T.Circle-32, Kolkata

ITA 926/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7246 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-10-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 26-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: SHIKHA AGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 926/KOL/2019 ASSESSMENT YEAR: 2014-15 NITU AGARWAL.........................................................................................APPELLANT 303, CENTURY TOWER, 45, SHAKESPEARE SARANI, KALAMANDIR, KOLKATA 700 017. [PAN: AESPA 7649 K] VS ACIT, CIRCLE-32, KOLKATA...................................RESPONDENT 10-B, MIDDLETON ROW, KOLKATA 700 071. APPEARANCES BY: SMT. SHIKHA AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 22, 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 22, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 9, KOLKATA DATED 25.02.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 27.07.2014 DECLARING A TOTAL INCOME OF RS. 39,50,660/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 05.12.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 41,44,558/- AFTER MAKING DISALLOWANCE OF RS. 72,098/- U/S 14A AND ADDITION OF RS. 1,21,800/- UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES 2 I.T.A. NO. 926/KOL/2019 ASSESSMENT YEAR: 2014-15 NITU AGARWAL ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 25.02.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAD SOUGHT ADJOURNMENT OF THE HEARING FIXED BY THE LD. CIT(A) ON 26.12.2018 BY FILING AN APPLICATION IN WRITING. HE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE, THEREAFTER WAS FIXED FOR HEARING BY THE LD. CIT(A) ON 19.02.2019 BUT SINCE THE NOTICE OF THE SAID HEARING WAS NOT RECEIVED BY THE ASSESSEE, NONE COULD APPEAR BEFORE THE LD. CIT(A) ON 19.02.2019. HE HAS CONTENDED THAT THE LD. CIT(A) HOWEVER DID NOT GIVE ANY MORE OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WHICH IS CLEARLY IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. KEEPING IN VIEW THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE, I AM OF VIEW THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE WHEN HER APPEAL WAS CALLED FOR HEARING BY THE LD. CIT(A) ON 19.02.2019. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO DISPUTE THIS POSITION. MOREOVER, AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. 3 I.T.A. NO. 926/KOL/2019 ASSESSMENT YEAR: 2014-15 NITU AGARWAL IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 22/10/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. NITU AGARWAL, 303, CENTURY TOWER, 45, SHAKESPEARE SARANI, KALAMANDIR, KOLKATA 700 017. 2. ACIT, CIRCLE-32, KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA