Madhuri Agarwala, Hooghly V. ITO,Ward-2, Malda, Malda

ITA 998/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87625 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-06-2012
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE & HON BLE SRI N.K.SAINI , A M & HON BLE SRI GEORGE MATHAN , JM ] ITA NO .998 /KOL/2012 ASSESSMENT YEAR : 2005 - 06 ( A PPELLANT ) (RESPONDENT) MADHURI AG ARWALA - VS - I.T.O., WARD - 2 HOOGHLY MALDA (PAN: ACNPA 7837 N) FOR THE APPELLAN T NONE FOR THE RESPONDENT SHRI RAJENDRA PRASAD, JCIT DATE OF HEARING : 28 .01.2015 DATE OF PRONOUNCEMENT : 28 .01.2015. ORDER PER SHRI N. K.SAINI , AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 05.03.2012 OF L D. C.I.T - (A),JALPAIGURI AND PERTAINS TO A.YR. 2005 - 06. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. NEITHER AN ADJOURNMENT WAS MOVE D. EARLIER THE CASE WAS FIXED FOR HEARING ON 22.10.2014 AND WAS ADJOURNED FOR TODAY BY INFORMING BOTH THE PARTIES IN THE OPEN COURT ITSELF. WE THEREFORE PROCEEDED EXPARTE TO DECIDE THIS APPEAL ON MERIT AFTER HEARING THE LD. DR. 3. IN THIS CASE IT IS NOTI CED THAT THE LD. CIT(A) DECIDED THE APPEAL EXPARTE AND IN THE FACE OF THE ORDER HE HAS MENTIONED AS UNDER : - DATE OF HEARING : NONE PRESENT FOR THE APPELLANT : NONE PRESENT FOR THE DEPARTMENT : NONE 3.1. THEREAFTER HE PROCEEDED EXPARTE BY OBS ERVING AS UNDER : ITA NO.998 /KOL/2012 MADH URI AGARWALA A.YR . 2005 - 06 2 THIS APPEAL ARISES OUT OF THE ASSESSMENT ORDER U/S 143(3) OF THE I.T.ACT, 1961 BY THE ITO WARD - 2, MALDA ON 11.12.2007. ON GOING THROUGH THE RECORDS, IT IS FOUND THAT MY LD.PREDECESSOR HAD HEARD THE APPEAL ON 09.07.2008, BUT NO ORDER U/S 250 WAS PASSED. TAKING OVER THE CHARGE, SIX MORE NOTICES U/S 250 WERE ISSUED, BUT NONE APPEARED BUT THE ASSESSEE FILED SEVERAL ADJOURNMENT APPLICATIONS WHICH WERE ALLOWED. EVEN THERE WAS NO RESPONSE. CONSIDERING THE FACT THAT THE CASE WAS HEARD ONCE BY MY LD.PREDECESSOR, THE APPEAL ORDER IS PASSED ON THE BASIS OF WRITTEN SUBMISSION AVAILABLE ON RECORD. FROM THE ABOVE OBSERVATION OF THE LD. CIT(A) IT IS CRYSTAL CLEAR THAT NO OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE ASSESSEE. ALTHOUGH HE HAD MENTIONED THAT SIX NOTICES U/S 250 OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WERE ISSUED BUT HE HAD NOT MENTIONED THE DATES OF NOTICES AND AS TO WHETHER THESE WERE SERVED UPON THE ASSESSEE. HE HAD MENTIONED THAT HIS PREDECESSOR HEARD THE APPEAL ON 09.07.2008 AND ONLY ON THAT BASIS HE PASSED THE ORDER DATED 05.03.2012. THEREFORE IT IS NOT CLEAR HOW HE HAD APPRECIATED THE FACTS FROM THE SUBMISSIONS HEARD BY HIS PREDECESSOR, WHILE PASSING THE IMPUGNED ORDER. IT IS WELL SETTLED THAT NOBODY SHOULD BE CO NDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . 4. IN THE PRESENT CASE THE LD. DR ALTHOUGH SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) BUT COULD NOT CONTROVERT THE AFORESAID FACTUAL MATRIX. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE DEEM IT PROPER TO REMAND THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERA TE AND NOT TO SEEK UNWARRANTED OR UNREASONABLE ADJOURNMENTS. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCE D IN THE OPEN COURT ON 28 .01.2015. SD/ - SD/ - [ GEORGE MATHAN ] [ N.K.SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 28 .01.2015. R.G.(.P.S.) ITA NO.998 /KOL/2012 MADH URI AGARWALA A.YR . 2005 - 06 3 COPY OF THE ORDER FORWARDED TO: 1 . MADHURI AGARWALA, C/O SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O.BUROSIBTALA, CHINSURAH, DIST. HOOGHLY, PIN: 712 105. 2 I.T.O., WARD - 2 , MALDA 3 . CIT - (A) - JALPAIGURI 4. CI T KOLKATA CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES