Pushpkant Commodities Pvt. Ltd., Kolkata V. ITO, WD-2(1), KOLKATA, Kolkata

ITA 951/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4519 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 05-05-2016
• Court: TRIBUNAL
• Department Lawyers: UDAY SARDAR
• Assessee Lawyers: MANISH TIWARI
• 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 NOS.951 & 952/KOL/2016 ASSESSMENT YEARS : 2006-07 & 2007-08 PUSHPKANT COMMODITIES (P) LTD. -VERSUS- I.T.O., WA RD-2(1), KOLKATA KOLKATA [PAN: AABCP 7137 R] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI MANISH TIWARI, FCA FOR THE RESPONDENT : SHRI UDAY SARDAR, ADDL.CIT DATE OF HEA RING : 28.09.2016 DATE OF PRONOUNCEMENT : 30.09.2016. ORDER PER DR.ARJUN LAL SAINI, AM THE CAPTIONED ABOVE CITED TWO APPEALS FIL ED BY THE ASSESSEE PERTAINING TO A.Y.2006-07 & 2007-08, ARE DIRECTED AGAINST ORDE RS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) -I, KOLKATA, IN APPEAL NO.49 5/CIT(A)-1/W-2(1`)/2008-09, DATED 29.03.2016 AND APPEAL NO.537/CIT(A)-1/W-2(1)/ 2009-10 DATED 29.03.2016, WHICH IN TURN ARISE OUT OF ORDERS PASSED BY THE L D. ASSESSING OFFICERS U/S 143(3) OF INCOME TAX ACT, 1961 (IN SHORT, THE ACT) DATED 26.1 2.2008 & 30.12.2009 RESPECTIVELY. 2. THE ABOVE MENTIONED TWO APPEALS RELATE TO THE SAME ASSESSE, DIFFERENT ASSESSMENT YEARS, COMMON ISSUES INVOLVED, THEREFORE THEY HAV E BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SA KE OF CONVENIENCE AND BREVITY. 3. IN BOTH THE APPEALS THE COMMON ISSUE RAISED BY THE ASSESSEE RELATES TO AN EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT TAKING INTO ACCOUNT THE WRITTEN SUBMISSIONS OF THE ASSESSEE. HOWEVER, IN THESE APPEALS THE ASSESSE E HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING THE SOLITARY GRI EVANCE OF THE ASSESSEE HAS BEEN ITA NOS.951 & 952/ KOL/2016 PUSHPKANT COMMODITIES (P)LTD. A..Y.2006-07 & 2007-08 2 CONFINED TO THE ISSUE WHICH RELATES TO AN EX-PARTE ASSESSMENT WITHOUT TAKING INTO ACCOUNT THE WRITTEN SUBMISSIONS OF THE ASSESSEE. 4. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE A SSESSEE IS A PRIVATE LIMITED COMPANY AND DERIVES INCOME FROM SHARES AND DERIVATIVES TRAD ING. THE AO PASSED THE ASSESSMENT ORDER FOR BOTH THE YEARS HOLDING THAT T HE ASSESSED DID NOT PRODUCE THE RELEVANT DOCUMENTS AND EVIDENCE TO SUPPORT ITS CLAI M. AGGRIEVED FROM THE ORDER OF THE LD. AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS ALSO PASSED THE ORDER WITHOUT TAKING INTO ACCOUNT THE WRITTEN SUBM ISSIONS SUBMITTED BY THE ASSESSEE. THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO I N BOTH THE YEARS. THEREFORE, AGGRIEVED FROM THE ORDER OF THE LD. CIT(A) THE ASSE SSEE IS IN FURTHER APPEAL BEFORE US. 5. AS WE HAVE EXPLAINED IN OUR EARLIER PARA T HAT THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS CASE IS THAT THE LD. CIT(A) HAS PASSED THE ORDER IGNORING THE WRITTEN SUBMISSIONS OF THE ASSESSEE. THE LD. AR FOR THE ASS ESSEE HAS SUBMITTED THAT HE HAS SUBMITTED THE WRITTEN SUBMISSIONS ON DATED 4 TH AUGUST, 2011 IN BOTH THE CASES. HOWEVER, THE ASSESSEE COULD NOT ATTEND THE SUBSEQUE NT HEARINGS OF THE LD. CIT(A) BECAUSE OF SOME REASONS. THE LD. CIT(A) SENT THE R EMAND REPORT TO THE AO AND THE AO COULD NOT SUBMIT THE REMAND REPORT TO THE LD. CI T(A) ON TIME BECAUSE THE ASSESSEE DID NOT ATTEND THE OFFICE OF THE AO AND DID NOT FIL E THE EVIDENCE AND DOCUMENTS REQUIRED BY HIM. THE LD. AR FURTHER ARGUED THAT HE COULD NOT ATTEND THE OFFICE OF THE AO TO SUBMIT DOCUMENTS, BECAUSE HE DID NOT GET THE NOTICE FROM THE AO, THAT IS, THE AO FAILED TO SEND THE NOTICE TO THE ASSESSEE. THERE FORE, THE ASSESSEE WAS NOT AWARE ABOUT THE ASSESSMENT PROCEEDINGS. THERE IS NO MISTA KE FROM THE ASSESSEES SIDE BECAUSE HE WAS READY TO COOPERATE WITH THE AO AND H E WAS READY TO REPLY THE REMAND REPORT BUT HE COULD NOT DO SO BECAUSE HE DID NOT GE T THE NOTICE FROM THE AO. THE LD. AR FURTHER ARGUED THAT HE HAS SUBMITTED THE WRITTEN SUBMISSION TO EXPLAIN EACH AND EVERY ADDITION BUT THE LD. CIT(A) DID NOT CONSIDER AT ALL. THEREFORE, IT IS AGAINST THE NATURAL JUSTICE. ITA NOS.951 & 952/ KOL/2016 PUSHPKANT COMMODITIES (P)LTD. A..Y.2006-07 & 2007-08 3 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRE SENTATIVE FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE LD. CIT (A) AND LD. AO, WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA, AND IS NOT BEIN G REPEATED FOR THE SAKE OF BREVITY. 7. 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 HE HAS GIVEN AN EXPLANATION THA T THE ASSESSE HAS SUBMITTED THE WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) BUT HE DI D NOT CONSIDER AT ALL. THEREFORE ORDER PASSED BY THE LD. CIT(A) IS NOT A SPEAKING OR DER AND IT IS AGAINST THE NATURAL JUSTICE. THE ASSESSEE COULD NOT ATTEND THE AO AND COULD NOT FILE THE REPLY OF THE REMAND REPORT BECAUSE THE AO FAILED TO SEND THE NOT ICE TO HIM. THE ASSESSEE DID NOT GET ANY NOTICE FROM THE AO AND THEREFORE HE COULD N OT REPLY THE REMAND REPORT PROPERLY. CONSIDERING THE ABOVE FACTUAL POSITION WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LD. CI T(A). THEREFORE WE REMIT THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE IS SUE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFO RE WE SET ASIDE THE CASE AND REMIT THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO DECI DE THE APPEAL AFRESH AS PER THE DIRECTIONS GIVEN SUPRA. 8. IN THE RESULT, ALL THE GROUNDS OF APPEAL FIL ED BY THE ASSESSEE IN BOTH THE APPEALS (ITA NO.951/KOL/2016 & 952/KOL/2016) ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30.09.2016. SD/- SD/- [S.S.VISWANETHRA RAVI] [DR.ARJUN LAL SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 30.09.2016. R.G.(.P.S.) ITA NOS.951 & 952/ KOL/2016 PUSHPKANT COMMODITIES (P)LTD. A..Y.2006-07 & 2007-08 4 COPY OF THE ORDER FORWARDED TO: 1 . PUSHPKANT COMMODITIES (P) LTD., 79, LENIN SARANI, R OOM NO.301, KOLKATA-700013. 2 I.T.O., WARD-2(1), KOLKATA. 3 . C.I.T.(A)- 1, KOLKATA 4. C.I.T., 1, KOLK ATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES