Nirmal Kumar Baid, Kolkata V. DCIT, Circle - 35, Kolkata, Kolkata

ITSSA 132/KOL/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8258 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-07-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 11-11-2011
• Court: TRIBUNAL
• Department Lawyers: A K PRANANICK
• Assessee Lawyers: VIKASH SHARMA
• Keywords: Opportunity of being heard; Non passing of speaking order

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ) BEFORE , /AND , . . ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM ] ( !' # '$ ) % / I.T(SS).A NO.132/KOL/2011 BLOCK PERIOD: 01.04.1995 TO 08.01.2002 NIRMAL KUMAR BAID VS. DEPUTY COMMISSIONER OF I NCOME-TAX, (PAN: AEEPB3324G) CIRCLE-35, KOLKATA. ('( /APPELLANT ) ()*'(/ RESPONDENT ) FOR THE APPELLANT: SHRI VIKASH SHARMA FOR THE RESPONDENT: SHRI A. K. PRANANICK DATE OF HEARING : 16.07.2012 DATE OF PRONOUNCEMENT: 16.07.2012 , / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 16 TH JULY, 2012, THE BENCH PASSED THE FOLLOWING ORDER: 16 TH JULY, 2012 THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES AND SET ASIDE TO CIT(A) FOR ALLOWING REASONABLE OPPORTUNITY OF BE ING HEARD TO ASSESSEE. ORDER PRONOUNCED IN OPEN COURT. DETAILED ORDER WILL FOLLOW. IN ACCORDANCE WITH THE ABOVE, THE REASONED ORDER IS NOW SET OUT AS FOLLOWS: PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XX, KOLKATA IN APPEAL NO. 255/CIT(A)-XX/CIRCLE-35/07-08/KOL DATED 24.08.2011. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-35, KOLKATA U/S. 158BD OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR BLOCK PERIOD 01.04.1995 TO 08.01.2002 VID E HIS ORDER DATED 30.08.2007. 2. THE SOLE ISSUE RAISED BY ASSESSEE AGAINST THE OR DER OF CIT(A) IN DISMISSING ASSESSEES APPEAL EX PARTE INSPITE OF GIVING INTIMATION ABOUT THE CHANGE IN CORRESPONDENCE ADDRESS WELL IN ADVANCE AND NO APPEAL HEARING NOTICE WAS EVER SERVE D ON THE ASSESSEE. FOR THIS, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS: 1. FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE ASSESSEES APPEAL EX PARTE, WHEN THE OFFICE OF CIT(A)-XX/KOL WAS DULY INTIMATED ABOUT THE CHANGE IN CORRESPONDENCE 2 IT(SS)A 132/K/2011 NIRMAL KUMAR BAID B.P. ENDING 08.01.2002 ADDRESS, WELL IN ADVANCE AND NO APPEAL HEARING NOTI CE WAS EVER SERVED ON THE TAX CONSULTANTS OFFICE. 2. FOR THAT THE APPEAL BE KINDLY RESTORED BACK TO T HE OFFICE OF LD. CIT(A)-XX AND SAME BE HEARD ON MERITS OF THE CASE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE SUBMITTED BEFORE US THAT LD. CIT(A) WHILE PASSING THE IMPUGNED ORDER HAD NOT BEEN GIVEN SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND PASSED THE ORDER EX PARTE AND ALSO NON -SPEAKING. HE ALSO SUBMITTED THAT INSPITE OF GIVING IMTIMATION ABOUT THE CHANGE OF ADDRESS OF TH E ASSESSEE WELL IN ADVANCE, NO APPEAL HEARING NOTICE WAS EVER SERVED ON THE ASSESSEE. HE NCE, HE PRAYED BEFORE THE BENCH TO SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIS F ILE FOR FRESH ADJUDICATION AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE FIND THAT THE ORDER OF CIT(A) IS EX PARTE AND EVEN NON-SPEAKING ORDER, WHICH IS AS UNDER: 3. IN THE GROUNDS OF APPEAL, THE APPELLANT HAS CHA LLENGED THE ABOVE ADDITIONS MADE BY THE AO ON ACCOUNT OF UNDISCLOSED PROFIT AND UNDISCL OSED INVESTMENT. NO WRITTEN SUBMISSION WAS FILED IN COURSE OF THE APPELLATE PRO CEEDINGS. HOWEVER, IN THE STATEMENT OF FACTS ENCLOSED WITH THE APPEAL, THE APPELLANT HA S REITERATED THE SUBMISSIONS MADE AT THE ASSESSMENT STAGE. THE APPELLANT HAS BROUGHT NO MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF THE AO. I FIND NO BASIS OR JUSTIFI CATION TO INTERFERE WITH THE ORDER OF THE AO WHICH IS UPHELD. THE GROUNDS RAISED IN THIS APP EAL ARE DISMISSED. THE ORDER OF CIT(A) IS A NON SPEAKING ORDER. WE ARE OF THE VIEW THAT WHERE APPEAL HAS BEEN DISPOSED OF EVEN THOUGH ON MERITS WITHOUT A SPEAKIN G ORDER, THE ORDER OF CIT(A) CANNOT BE SUSTAINED. THE PROVISIONS OF SECTION 250(6) OF THE ACT ARE IN THE NATURE OF JUDICIAL DISCRETION TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE OR DER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT CRYPTIC BUT SH ALL BE SELF-EXPLANATORY. HENCE, WE SET ASIDE THE ORDER OF CIT(A) FOR FRESH ADJUDICATION AFTER PR OVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . ! , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ! ! ! !) )) ) DATED : 16TH JULY, 2012 -. /0' 1 JD.(SR.P.S.) 3 IT(SS)A 132/K/2011 NIRMAL KUMAR BAID B.P. ENDING 08.01.2002 , 2 )3 4 356- COPY OF THE ORDER FORWARDED TO: 1 . '( / APPELLANT SHRI NIRMAL KUMAR BAID, C/O P. C. BHUT ORIA & CO.4, SYNAGOGUE STREET, 8 TH FLOOR, ROOM NO. 816, KOLKATA-700 001. 2 )*'( / RESPONDENT DCIT, CIRCLE-35, KOLKATA. 3 . ,/ ( )/ THE CIT(A), KOLKATA 4. 5. ,/ / CIT KOLKATA 3<= )/ / DR, KOLKATA BENCHES, KOLKATA *3 )/ TRUE COPY, ,/>/ BY ORDER, ' /ASSTT. REGISTRAR . `