Shalimar Tie-Up Private Limited, Kanpur V. ITO, Ward 1(3), Kolkata, Kolkata

ITA 968/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6614 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Keywords: Opportunity of being heard
• Section: 142(1); 144

Judgement Text

1 ITA NO.968/KOL/2017 SHALIMAR TIE-UP PVT. LTD., AY- 2009-10 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) BEFORE . . , /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 968/KOL/2017 ASSESSMENT YEAR: 2009-10 SHALIMAR TIE-UP PRIVATE LIMITED (PAN: AAMCS1545H)) VS. INCOME-TAX OFFICER, WD-1(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 21.06.2018 DATE OF PRONOUNCEMENT 27.06.2018 FOR THE APPELLANT SHRI ASHISH BANSAL, ADVOCATE FOR THE RESPONDENT SHRI A. K. TIWARI, CIT ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF LD. CIT(A)-1, KOLKATA DATED 10.02.2017 FOR AY 2009-10. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LD. CIT(A) AS WELL AS THE AO HAS PASSED EX PARTE ORDER WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE ALSO SUBMITTED THAT THE AO IN THE ASSESSMENT ORDER PASSED U/S. 144/263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) IN PARA 2.1 STATED THAT A NOTICE U/S. 142(1) OF THE ACT DATED 13.08.2014 WAS ISSUED TO THE ASSESSEE COMPANY AS PER ITS LAST KNOWN ADDRESS VIZ., 7/1A, GRANT LANE, KOLK ATA700 012, GIVING OPPORTUNITY OF HEARING ON 02.09.2014. BUT THE SAME WAS RETURNED B ACK WITH POSTAL REMARKS INSUFFICIENT ADDRESS. ANOTHER RE-FIXATION LETTER WAS ISSUED ON 17.10.2014 BUT THE SAME WAS RETURNED UNSERVED WITH THE REMARK INSUFFICIENT ADDRESS. T HEREAFTER, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT U/S 144 OF THE ACT ON THE BASIS OF DETAILS AND INFORMATION AVAILABLE. THE LD. AR FURT HER SUBMITTED THAT NO NOTICE OF HEARING WAS SERVED ON THE ASSESSEE FROM THE OFFICE OF THE L D. CIT(A) FIXING THE DATE OF HEARING ON 27.12.2016, 09.01.2017 AND 31.01.2017 AND IN VIEW O F THE MATTER NO COMPLIANCE WAS 2 ITA NO.968/KOL/2017 SHALIMAR TIE-UP PVT. LTD., AY- 2009-10 POSSIBLE TO BE MADE ON BEHALF OF THE ASSESSEE. HEN CE, HE URGED BEFORE THE BENCH TO SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTO RE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. ON THE OTHER HAND, LD. DR RELIED ON T HE ORDERS OF THE LOWER AUTHORITIES. 3. AFTER HEARING BOTH THE SIDES AND ON PERUSAL OF T HE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE LD. CIT(A) AS WELL AS THE AO HAS PASS ED THE AN EX PARTE ORDERS. WE ALSO NOTE THAT THE ASSESSEE HAS SUBMITTED THAT NO NOTICE OF H EARING WAS SERVED ON THE ASSESSEE AND HENCE, ASSESSEE COULD NOT MAKE COMPLIANCE BY INSTRU CTING ITS AR TO APPEAR AND PLEAD ITS CASE BEFORE THE LD. CIT (A) AS WELL AS THE AO. WE ALSO NOTE THAT THE ADDRESS OF THE ASSESSEE HAS CHANGED I.E. AT C/O AHMAD EHTISHAM, DI RECTOR, 14/35(1), CIVIL LINES, KANPUR, UTTAR PRADESH-208001. SINCE THE NOTICE OF HEARING HAS NOT BEEN SERVED TO THE ASSESSEE IN ITS NEW ADDRESS, THE LD. AR OF THE ASSESSEE COMPANY COULD NOT ATTEND THE HEARING. THE CHANGE OF ADDRESS SHOULD HAVE BEEN COMMUNICATED TO THE LD. CIT (A) AS WELL AS TO THE AO, WHICH LAPSE ON THE PART OF ASSESSEE IS NOT WILLFUL AND WAS A BONA FIDE MISTAKE ON THE PART OF THE ASSESSEE, THEREFORE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION ON MERITS. NEEDLESS TO SAY, THE ASSESSEE SHOULD BE GIVEN REASONABLE OPPORTUNITY OF BEING HEA RD. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27.06.2018 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27TH JUNE, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. SHALIMAR TIE-UP PVT. LTD., C/O AHMAD EHTISHAM, DIRECTOR, 14/35(1), CIVIL LINES, KANPUR, UTTAR PRAD ESH-208001. 2 RESPONDENT ITO, WARD-1(3), KOLKATA. 3. THE CIT(A) -1, KOLKATA. (SENT THROUGH E-MAIL) 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY