DCIT,Central Circle, Sambalpur V. M/s. Bajrang Engineers Pvt. Limited, Rourkela

ITSSA 11/CTK/2019

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9184 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-11-2022
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 01-11-2022
• Assessment Year: misc
• Appeal Filed On: 13-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

आयकर अऩीऱीय अधधकरण, कटक न्यायऩीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समऺ । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर (तऱाशियाां और अशिग्रहण) अऩीऱ सं/IT(SS)A No.11/C TK/2 019 (ननधाारण वषा / Asses s m ent Year :2014-2 015) DCIT, Central Circle, Sambalpur Vs M/s Bajrang Engineers Pvt. Ltd., J 4/3, Civil Township, Rourkela PAN No. :AACCA 6655 L (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri Firoze B. Andhyarujina, Sr. Advocate with Shri Shyam Sunder Jangid, CA and Shri Nikhil Jangid, Advocate राजस्व की ओर से /Revenue by : Shri M.K.Gautam, CIT-DR स ु नवाई की तारीख / Date of Hearing : 02/11/2022 घोषणा की तारीख/Date of Pronouncement : 02/11/2022 आदेश / O R D E R Per Bench : This an appeal filed by the revenue against the order of the ld. CIT(A)-2, Bhubaneswar, dated 28.11.2018, passed in I.T.Appeal No.0453/2016-17 for the assessment year 2014-2015. 2. It was submitted by the ld. CIT-DR that, at the outset, opportunity of being heard u/s.250(1) of the Act has not been granted to the AO, insofar as no notice under ITNS-51 has been issued to the AO. The ld. CIT-DR placed before us the copy of the ordersheet from the file of ld. CIT(A), which is extracted hereinbelow :- IT(SS)A No.11/CTK/2019 2 IT(SS)A No.11/CTK/2019 3 3. It was the submission that as no ITNS-51 has been issued to the AO, the order of the ld. CIT(A) is liable to be reversed. 4. In reply, ld. Sr. Counsel submitted that the powers of ld. CIT(A) is co-terminus with that of the AO and all evidence which have been considered by the ld. CIT(A) were before the AO also. It was the submission that the word “shall” which is used in Section 250(1) of the Act is to be read as “may”. It was the submission that the appeal of the revenue should be disposed off on merits and also deserves to be dismissed. 5. In reply, ld. CIT-DR placed before us the order of the coordinate bench of this Tribunal in the case of M/s Kalinga Mining Corporation, passed in ITA Nos.389-392 & 465-467/CTK/2019, order dated 23.06.2022, wherein the coordinate bench of this Tribunal has held in para 8 as under:- 8. We are not going into merits of the appeals. Only because an opportunity of hearing as prescribed u/s.250(1) of the Act has not been provided by the ld. CIT(A) to the AO and there is a clear violation of principle of natural justice in respect of opportunity to be given to the AO against whose orders the appeals have been preferred, we are of the view that the orders of ld. CIT(A) for all the impugned assessment years would have to be set aside on account of non-granting of opportunity of hearing to the AO as per the provisions of Section 250(1) of the IT(SS)A No.11/CTK/2019 4 Act and we do so. Consequently, the issues in these appeals are restored to the file of CIT(A) for readjudication after granting opportunity of hearing to both appellant/assessee and the AO against whose orders the appeals have been preferred before the CIT(A) and pass reasoned order in accordance with law. 6. We have considered the rival submissions. A perusal of the provision of Section 250(1) of the Act clearly uses the word “shall”. An appellate authority may remove kinks in the interpretation of a statute. An appellate authority does not have the inherent power to read into or read out of a provision of statute. A perusal of the ordersheet of the ld. CIT(A)’s folder clearly shows that the notice of hearing has not been issued to the AO in the present case. This being so, in respectful agreement with the decision of the coordinate bench of this Tribunal in the case of M/s Kalinga Mining Corporation, referred to supra, on identical findings, the issues in this appeal are restored to the file of CIT(A) for readjudication after granting the assessee adequate opportunity of being heard. 7. In the result, appeal of the revenue is partly allowed for statistical purposes. Order dictated and pronounced in the open court on 02/11/2022. Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) Sd/- (जाजज माथन) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 02/11/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant- DCIT, Central Circle, Sambalpur 2. प्रत्यथी / The Respondent- M/s Bajrang Engineers Pvt. Ltd., J 4/3, Civil Township, Rourkela IT(SS)A No.11/CTK/2019 5 आदेशान ु सार/ BY ORDER, (Assistant Registrar) आयकर अऩीऱीय अधधकरण, कटक/ITAT, Cuttack 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पविागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//