Sidhsilver Infracon Consultants Pvt. Ltd., Kolkata V. I.T.O.,Ward-2(1), Kolkata

ITA 968/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8240 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 30-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 144

Judgement Text

1 ITA NO. 968/KOL/2019 M/S. SIDHSILVER INFR ACON CONSULTANTS P. LTD.., AY- 2012-13 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 968/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. SIDHSILVER INFRACON CONSULTANTS P. LTD. (PAN: AAPCS8338D) VS. INCOME-TAX OFFICER, WD-2(1), KOLKATA APPLICANT RESPONDENT DATE OF HEARING 07.06.2019 DATE OF PRONOUNCEMENT 17.07.2019 FOR THE APPLICANT SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI JOYDEEP CHAKRABORTY, ADVOCATE FOR THE RESPONDENT SHRI SHANKAR HALDER, JCIT, SR. D R ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-17, KOLKATA DATED 06.03.2019 FOR AY 2012-13. 2. THOUGH THE ASSESSEE HAS RAISED AS MANY AS FIVE G ROUNDS OF APPEAL, THE FIRST AND FOREMOST ISSUE IS AGAINST THE ACTION OF LD. CIT(A) IN DECIDING THE APPEAL EX PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. AT THE OUTSET ITSELF, THE LD. AR OF THE ASSESSE E BROUGHT TO OUR NOTICE THAT THE AO HAS MADE THE ADDITION BECAUSE THE ASSESSEE DID NOT COMP LY WITH THE NOTICE U/S. 143(2) AND 142(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) AND CONSEQUENTLY PASSED THE ASSESSMENT ORDER U/S. 144 OF THE ACT. A CCORDING TO LD. AR, THE NOTICE WAS UN- SERVED ON THE ASSESSEE. SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE AO, ADVERSE INFERENCES WERE DRAWN AGAINST THE ASSESSEE AND THE ADDITION WA S MADE. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION OF AO. ACCORDING TO LD. AR, T HE ASSESSEE IS READY TO COMPLY WITH THE DIRECTION OF AO IF AN OPPORTUNITY IS GIVEN TO THEM TO APPEAR BEFORE THE AO. SINCE THERE WAS NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE, TH E LD. AR PRAYS THAT THE MATTER MAY BE REMANDED BACK TO THE AO. THE LD. DR DOES NOT HAVE ANY OBJECTION IF THE ASSESSEE 2 ITA NO. 968/KOL/2019 M/S. SIDHSILVER INFR ACON CONSULTANTS P. LTD.., AY- 2012-13 COOPERATES DILIGENTLY BEFORE THE AO BY APPEARING BE FORE THE AO ALONG WITH PROPER DOCUMENTS AND EVIDENCES. . 4. WE NOTE THAT ASSESSEE COULD NOT APPEAR BEFORE TH E AO BECAUSE ACCORDING TO ASSESSEE, NOTICE WAS UN-SERVED ON IT. SINCE THE ASSESSEE /DI RECTOR OR EVEN THE LD. AR DID NOT TURN UP BEFORE THE AO, HE DREW ADVERSE INFERENCE AGAINST TH E ASSESSEE AND MADE THE ADDITION. THE LD. CIT(A) HAS CONFIRMED THE ACTION OF AO BY AN EX PARTE ORDER. HOWEVER, DURING THE HEARING BEFORE US, THE LD. AR HAS BROUGHT TO OUR NO TICE THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS READY TO COOPERATE IN THE ASSESSMENT PR OCEEDINGS BEFORE THE AO. IN THE AFORESAID CIRCUMSTANCES, WE ARE OF THE OPINION THAT THERE WAS NO PROPER OPPORTUNITY GRANTED TO THE ASSESSEE AT THE TIME OF ASSESSMENT STAGE. TH EREFORE, RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX COMPA NY VS. CIT (2001) 249 ITR 216 (SC), WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AN D REMAND THE MATTER BACK TO THE FILE OF AO TO FRAME DE NOVO ASSESSMENT AFTER AFFORDING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE 3 ITA NO. 968/KOL/2019 M/S. SIDHSILVER INFR ACON CONSULTANTS P. LTD.., AY- 2012-13 ASSESSEE AND THE ASSESSEE TO DILIGENTLY PARTICIPATE IN THE ASSESSMENT PROCEEDINGS SUBJECT TO PAYMENT OF COST OF RS.5000/-. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17TH JULY , 2019. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 17TH JULY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. M/S. SIDHSILVER INFRACON CONSUL TANTS P. LTD., 52/9A, B. B. GANGULY STREET, 1 ST FLOOR, KOLKATA-700 012. 2 RESPONDENT ITO, WARD-2(1), KOLKATA 3. 4. CIT(A)-17, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR