Sri Swapan Kumar Chakraborty, Birbhum V. ITO, Ward - 3(2), SURI, BIRBHUM, Birbhum

MA 130/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0429 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: M D SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & SHRI DR. ARJUN LAL SAINI, AM M.A. NO . 13 0/ KOL/2018 [IN I.T A NO. 685/KOL/2016 A.Y 20 10 - 11 ] SRI SWAPA N KR. CHAKRABORTY VS. I.T.O. WARD 3(2), SURI PAN: ADIPC 2431J BIRBHUM [ APPLICANT ] [ RESPONDENT ] APPLICANT BY : SHRI M. D. SHAH, AR RESPONDENT BY : SHRI ROBIN CHOUDHURY, ADDL. CIT, DR DATE OF HEARING : 07 - 09 - 2018 DATE OF PRONOUNCEMENT : 07 - 09 - 2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM BY T H IS MISCELLANEOUS APPLICATION FILED U/S. 254(2) OF THE ACT THE APPLICANT ASSESSEE INTENDS TO RECALL THE EX PARTE ORDER DT. 15 - 11 - 2017 PASSED IN ITA NO. 685 /KOL/201 6 FOR THE A.Y 20 10 - 11 . 2. THE LD. AR SUBMITS THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE FROM THE REGISTRY INTIMATING THE DATE OF HEARING AND NO ORDER DT. 15 - 11 - 2017 WAS RECEIVED BY T HE ASSESSEE. THE ASSESSEE OBTAINED THE CERTIFIED COPY OF OR DER ON 26 - 02 - 2018. HE SUBMITS THAT THIS TRIBUNAL UPHELD THE FINDING OF CIT - A IN DIRECTING THE AO TO COMPUTE THE INCOME OF ASSESSEE TAKING INTO CONSIDERATION THE RATE OF NET PROFIT. BUT, HOWEVER, T HE TRIBUNAL OBSERVED THAT THE ASSESSEE IS AT LIBERTY TO FILE THE EVIDENCES BEFORE THE AO IN SUPPORT OF HIS CLAIM IN PARA - 6 OF SAID ORDER . THE SAID OBSERVATION IS NOT NECESSARY FOR THE REASON THAT THE CIT - A ALREADY HELD THE MANNER OF COMPUTING THE INCOME O F ASSESSEE TO BE ADOPTED BY THE AO AND THERE WAS NO FURTHER REQUIREMENT OF FILING ANY EVIDENCE BEFORE THE AO. THE AR PLACED ON RECORD THE ORDER DT. 02 - 03 - 2016 PASSED BY THE AO U/S. 143(3)/154/251 OF THE ACT GIVING EFFECT TO THE DIRECTION OF CIT - A , WHEREI N THE TURNOVER WAS ESTIMATED BY THE AO HIMSELF AND AS SUCH THERE WAS NO FURTHER REQUIREMENT TO DETERMINE THE TURNOVER AGAIN . THE AO HAD FOUND M.A. NO . 130/KOL/2018 SWAPAN KR. CHAKRABORTY 2 THAT UNDISCLOSED TURNOVER WAS AT RS. 56,58,506/ - . THE CIT - A HAD DIRECTED THE AO TO COMPUTE THE NET PROFIT ON THIS UNDISCLOSED TURNOVER BASED ON THE NET PROFIT PERCENTAGE AS DISCUSSED IN REGULAR BOOKS OF ACCOUNT FOR THE PERIOD UNDER CONSIDERATION. THIS FINDING OF CIT - A HAS BEEN UPHELD BY THE TRIBUNAL AND REFERRED TO PARA 6 OF EX PARTE ORDER PASSED BY THIS TRIBUNAL. F URTHER, THE LD.AR POINTED OUT AN ERROR IN PARA 7 IN EX PARTE ORDER , THAT WHEN THE TRIBUNAL HAS UPHELD THE ORDER OF CIT - A THE RESULT IN THE REVENUES APPEAL SHOULD HAVE BEEN DISMISSED, BUT INSTEAD, THE APPEAL OF REVENUE HAS BEEN ALLOWED, WHICH IS AN ERRO R APPARENT ON RECORD , NEEDS TO BE CORRECTED AND AS SUCH PRAYED TO RECTIFY THE MISTAKE AS THE APPEAL OF REVENUE IS DISMISSED AND REFERRED TO ALTERNATIVE PRAYER MADE IN PARA 10 OF MISC. APPLICATION. 3 . ON THE OTHER HAND, THE LD. DR VEHEMENTLY OPPOSED THE A BOVE SUBMISSIONS OF THE LD. AR AND PRAYED TO DISMISS THE MISC. APPLICATION OF ASSESSE E . HE ALSO SUBMITS THAT THERE WAS NO ERROR IN MENTIONING THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCES BEFORE THE AO IN SUPPORT OF HIS CLAIM AND RELIED ON THE IMPUGNED ORDE R OF THIS TRIBUNAL. 4 . HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT IS NOTED THAT THE ASSESSEE RAISED US TWO PRAYERS IN THIS MISC. APPLICATION FILED U/S. 252(2) OF THE ACT. VIDE PARA 10 . T HE FIRST PRAYER IS TO RECALL THE EX PARTE ORDER D T. 15 - 11 - 2016 IN TERMS OF RULE 25 OF ITAT RULES 1963. IT IS OBSERVED FROM RECORD THAT THIS TRIBUNAL DISPOSED OF THE APPEAL IN THE ABSENCE OF THE ASSESSEE. THE CONTENTION OF LD.AR IS THAT THE ASSESSEE DID NOT RECEIVE THE NOTICE OF H E ARING AND AS SUCH TRIB UNAL PASSED EX PARTE ORDER AGAINST THE ASSESSEE. THE TRIBUNAL PROCEEDED TO HEAR THE LD. DR AND DISPOSED OF THE SAME CONFIRMING THE ORDER OF CIT - A EX PARTE OF ASSESSEE. IT IS NOTED THAT IN SUPPORT OF ABOVE CONTENTION, ONE SHRI VISWAJIT MUKHERJEE BY PROFESS ION ADVOCATE FILED AN AFFIDAVIT DT. 10 - 07 - 2018 STAT ING THAT NO NOTICE WAS RECEIVED BY THE ASSESSEE AND NON APPEARANCE OF ASSESSEE BEFORE THIS TRIBUNAL WAS NOT DUE TO MALAFIDE INTENTION, BUT IT WAS BEYOND THE CONTROL OF ASSESSEE. WE FIND FORCE IN THE SUBMIS SIONS OF THE M.A. NO . 130/KOL/2018 SWAPAN KR. CHAKRABORTY 3 LD.AR IN RESPECT OF PRAYER MADE IN SUB - PARA (A) PARA 10 OF MISC. APPLICATION ; THAT EX PARTE ORDER DT. 15 - 11 - 2017 NEEDS TO BE RECALLED. FOR BETTER UNDERSTANDING THE RULE 25 OF ITAT RULES 1963 IS REPRODUCED HEREIN BELOW: - RULE - 25, INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963 [ HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE RESPONDENT. 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTHER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT :] [ PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE [RESPONDENT] A PPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL]. 5. A BARE READING OF ABOVE RULE EXPLAINS T HE TRIBUNAL MAY DISPOSE OF APPEAL ON MERITS AFTER HEARING THE APPELLANT IN THE ABSENCE OF RESPONDENT. IN THE MAIN APPEAL, THE APPELLANT IS REVENUE AND RESPONDENT IS ASSESSEE. THE TRIBUNAL ON THE DATE OF HEARING OF MAIN APPEAL FOUND TH E RESPONDENT CALLED ABSENT AND PROCEED ED TO HEAR THE APPELLANT REVENUE EX PARTE OF ASSESSEE. A PROVISO TO RULE 25 OF ITAT RULES 1963 PROVIDES AN OPPORTUNITY TO THE RESPONDENT TO FILE AN APPLICATION SHOWING SUFFICIENT CAUSE FOR NON APPEARANCE, THE TRIBUN AL ON SUCH SATISFACTION SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. IN THE PRESENT CASE, AS DISCUSSED ABOVE, THAT AN ADVOCATE REPRESENTING THE ASSESSEE FILED AN AFFIDAVIT STATING THAT NO NOTICE OF HEARING HAS BEEN RECEIVED BY THE ASSESSEE AND THERE WAS NO OPPORTUNITY FOR THE ASSESSEE TO APPEAR BEFORE THIS TRIBUNAL. TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE LD.AR AND PROVISO TO RULE 25 OF ITAT RULES, 1963, IN OUR OPINION, THE REASONS STATED IN THE AFFIDAVIT REALLY PR EVENTED THE ASSESSEE IN NOT APPEARING BEFORE THIS TRIBUNAL ON THE DATE OF HEARING. 6. FURTHER, AN ALTERNATIVE PRAYER MADE IN SUB - PARA (B) PARA 10 OF MISC. APPLICATION, THE LD. AR SUBMITS THAT THIS TRIBUNAL UPHELD THE ORDER OF CIT - A IN DIRECTING THE AO TO COMPUTE THE INCOME OF ASSESSEE TAKING INTO CONSIDERATION THE RATE OF NET PROFIT AND ACCORDINGLY, THE AO HAS GIVEN M.A. NO . 130/KOL/2018 SWAPAN KR. CHAKRABORTY 4 EFFECT TO THE ORDER OF CIT - A ON 02 - 03 - 2016 AND PLACED ON RECORD THE SAID ORDER. IT IS NOTED FROM THE GIVING EFFECT ORDER, THE AO INITIALLY A DDED THE ENTIRE UNDISCLOSED INCOME TO THE TOTAL INCOME OF ASSESSEE AND DETERMINED THE SAME AT RS. 74,32,520/ - AGAINST THE RETURNED INCOME OF RS.7,24,010/ - . IN THE GIVING EFFECT PROCEEDINGS, THE AO REDUCED THE SAME BY RS. 65,32,887/ - IN PURSUANCE OF DIRECT ION OF CIT - A IN THE FIRST APPELLATE STAGE AND THEREBY, DETERMINED THE REVISED TOTAL INCOME AT RS. 8,99,633/ - , WHICH WAS ACCEPTED BY THE ASSESSEE . THEREFORE, IN SUCH PECULIAR CIRCUMSTANCES OF CASE AND TO AVOID MULTIPLICATION OF PROCEEDINGS , TAKING INTO CO NSIDERATION OUR FINDING IN PARA - 6 OF IMPUGNED EX PARTE ORDER AND IN THE INTEREST OF JUSTICE , WE RECALL THE EX PARTE ORDER DT. 15 - 11 - 2017 AND RESTORE THE APPEAL IN ITA NO. 685/KOL/2016 TO THE FILE. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 12 - 09 - 2018. SINCE THE DATE OF HEARING ( 12 - 09 - 2018) IS PRONOUNCED IN THE OPEN COURT, NO NOTICES WILL BE ISSUED/SERVED TO BOTH THE PARTIES. 7 . IN THE RESULT, THE M ISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDE R PRONOUNCED IN THE OPEN COURT ON 07 - 09 - 2018 SD/ - SD/ - ARJUN LAL SAINI S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 07 - 09 - 2018 M.A. NO . 130/KOL/2018 SWAPAN KR. CHAKRABORTY 5 **PP/SPS COPY OF THE ORDER FORWARDED TO: 1. APPLICANT /ASSESSEE: SRI SWAPAN KUMAR CHAKRABOTRY, PROP: BGS SECURITIES & ALLIED SERVICES, LOTUS PRESS MORE, RAMPURHAT, DIST: BIRBHUM . 2 RESPONDENT /DEPARTMENT: THE INCOME TAX OFFICER, WARD 3(2), SURI, BIRBHUM, AAYKAR BHAWAN, LALKUTHIPARA, SURI, BIRBHUM - 731101. 3. CIT, 4. CIT(A), KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER, SR.PS, H.O.O ITAT,KOL