M/s. Shryansnath Enterprises Pvt. Ltd., , Kolkata V. ITO, Ward - 9(4), Kolkata , Kolkata

MA 197/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5060 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 20-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: MANOJ KATARUKA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM M.A. NO.197/KOL/2019 (ARISING OUT OF ./ITA NO.1817/KOL/2018) ( / ASSESSMENT YEAR: 2012-13) M/S SHRYANSNATH ENTERPRISES PVT. LTD. C/O, GAURAV V SINGHVI & CO. PVT. LLP 3 RD FLOOR, THE FINANCIAL SUPER MARKET TOWER, BEHIND RISHABH PETROL PUMP, RINGH ROAD, SURAT-395002. VS. ITO, WARD-9(4), KOLKATA ./ ./PAN/GIR NO. : AAPCS 0172 D ( /APPELLANT ) .. ( / RESPONDENT ) ./ITA NO.1817/KOL/2018 ( / ASSESSMENT YEAR: 2012-13) M/S SHRYANSNATH ENTERPRISES PVT. LTD. C/O, GAURAV V SINGHVI & CO. PVT. LLP 3 RD FLOOR, THE FINANCIAL SUPER MARKET TOWER, BEHIND RISHABH PETROL PUMP, RINGH ROAD, SURAT-395002. VS. ITO, WARD-9(4), KOLKATA ./ ./PAN/GIR NO. : AAPCS 0172 D ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI MANOJ KATARUKA, ADVOCATE RESPONDENT BY : SHRI SUPRIYO PAL, JCIT SR. DR / DATE OF HEARING : 18/10/2019 /DATE OF PRONOUNCEMENT : 31/10/2019 M/S SHRYANSNATH ENTERPRISES PVT. LTD. MA NO. 197/KOL/2019 (ARISING OUT OF I.T.A. NO. 1817/KOL/2018) I.T.A. NO. 1817/KOL/2018 A.Y: 2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 / O R D E R PER DR. A. L. SAINI: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE PRAYING TO RECALL THE ORDER OF THE TRIBUNAL DATED 30/04/2019. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS A PPLICATION IS THAT ASSESSEE COULD NOT RECEIVE THE NOTICE FROM THE OFFICE OF THE TRIBU NAL THEREFORE HE COULD NOT ATTEND THE HEARING BEFORE THE TRIBUNAL. THE LD. COUNSEL ST ATED THE REASONS OF NON- APPEARANCE BEFORE THIS TRIBUNAL IN THE MA FILED B Y HIM WHICH IS GIVEN BELOW: 2. THAT THE HONBLE ITAT, D BENCH, KOLKATA IN IT A NO. 1817/KOL/2018 VIDE ORDER DATED 30.04.2019 HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION. 3. THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING ON ANY DATES AND ALSO WAS NOT AWARE OF HEARING FIXED ON 15.03.2019 OR 18. 04.2019 AS MENTIONED IN THE ORDER OF THE HONBLE TRIBUNAL. 3. WE NOTE THAT THE ASSESSEE WAS UNAWARE OF THE DAT E OF HEARING WHICH HAS RESULTED IN NON-ATTENDANCE BY THE ASSESSEE. THE NOTICE OF HE ARING DID NOT SERVE ON THE ASSESSEE. THEREFORE, KEEPING IN MIND THE PRINCIPLE OF NATURAL JUSTICE AND FAIR PLAY WE RECALL THE ORDER OF TRIBUNAL DATED 30.04.2019. 4. WITH THE CONSENT OF BOTH THE PARTIES THE RELATE D APPEAL ITSELF HAS BEEN HEARD TODAY AND IS BEING DISPOSED OF BY THIS ORDER. NOW W E SHALL TAKE UP THE ASSESSEES APPEAL IN I.T.A. NO. 1817/KOL/2018 FOR ASSESSMENT Y EAR 2012-13. 5. THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2012- 13, IS DIRECTED AGAINST THE ORDER PASSED BY THE COM MISSIONER OF INCOME TAX M/S SHRYANSNATH ENTERPRISES PVT. LTD. MA NO. 197/KOL/2019 (ARISING OUT OF I.T.A. NO. 1817/KOL/2018) I.T.A. NO. 1817/KOL/2018 A.Y: 2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 (APPEAL)-18, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 14/03/2015. 6. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THE COPY OF INCOME TAX RETURN, BALANCE SHEET, PROFIT AND LOSS ACCOUNT, ALLOTMENT A DVICE OF SHARES, BANK STATEMENTS, PAN NO. ETC. IN RESPECT OF ASSESSEE COMPANY. THE AS SESSEE ALSO SUBMITTED DOCUMENTS IN RESPECT OF SHARE SUBSCRIBING COMPANIES WHICH WERE NOT CONSIDERED BY THE ASSESSING OFFICER. THE LD. COUNSEL ALSO SUBM ITTED THAT ASSESSEE DID NOT GET OPPORTUNITY OF BEING HEARD DURING THE ASSESSMENT ST AGE, THEREFORE, AN ANOTHER OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEA D HIS CASE BEFORE LD. ASSESSING OFFICER. 7. THE LD. DR, ON THE OTHER HAND, HAS NOT CONTROVER TED THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 8. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT DURING THE ASSESSMENT STAGE, THE ASSESSEE SUBMITTED COPY OF IN COME TAX RETURN, BALANCE SHEET, PROFIT AND LOSS ACCOUNT, ALLOTMENT ADVICE OF SHARES , BANK STATEMENTS, PAN NO ETC. OF THE ASSESSEE COMPANY. THE ASSESSING OFFICER HAS NOT CONSIDERED THE SAME WHILE MAKING ASSESSMENT ORDER. THE ASSESSEE ALSO SUBMITT ED VARIOUS DOCUMENTS AND EVIDENCES RELATING TO SHARE SUBSCRIBING COMPANIES, WHICH WERE NOT CONSIDERED BY ASSESSING OFFICER. THEREFORE, IT IS AGAINST THE PRI NCIPLE OF NATURAL JUSTICE. WE ALSO NOTE THAT LD AO DID NOT PROVIDE ADEQUATE OPPORTUNI TY TO THE ASSESSEE OF BEING HEARD. THE HONBLE (THREE JUDGE BENCH) OF THE HONB LE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) HAS HELD A S UNDER: M/S SHRYANSNATH ENTERPRISES PVT. LTD. MA NO. 197/KOL/2019 (ARISING OUT OF I.T.A. NO. 1817/KOL/2018) I.T.A. NO. 1817/KOL/2018 A.Y: 2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 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 READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING 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 REASONABLE 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 ASI DE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FR ESH 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 HEARING 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 TRIBU NAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FO R FRESH CONSIDERATION, AS AFORESTATED. THEREFORE, WE ARE OF THE VIEW THAT ONE MORE OPPORTU NITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFF ICER. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INT EREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. ASSESSING OFFICER F OR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF TH E LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER TO A DJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. M/S SHRYANSNATH ENTERPRISES PVT. LTD. MA NO. 197/KOL/2019 (ARISING OUT OF I.T.A. NO. 1817/KOL/2018) I.T.A. NO. 1817/KOL/2018 A.Y: 2012-13 P PP PA AA AG GG GE EE E | || | 5 55 5 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.10.2019 . SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 31/10/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. M/S SHRYANSNATH ENTERPRISES PVT. LTD. 2. ITO, WARD-9(4), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES