M/s. India Housing, Kolkata V. D.C.I.T., Circle - 33, Kolkata

MA 217/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 6786 (ITAT-KOLKATA)
• Duration Of Justice: 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

1 MA NO.217/KOL/2018 M/S. INDIA HOU SING., AY- 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] M.A. NO.217/KOL/2018 IN I.T.A. NO. 775/KOL/2013 ASSESSMENT YEAR: 2008-09 M/S. INDIA HOUSING (PAN: AABFI8377B) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-33, KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 21.12.2018 DATE OF PRONOUNCEMENT 21.12.2018 FOR THE APPLICANT S/SHRI P. JHUNJHUNWALA & U. SHARM A, ARS FOR THE RESPONDENT SHRI SANKAR HALDER, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSESS EE AGAINST THE ORDER OF THE TRIBUNAL DATED 01.05.2018, WHEREIN THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE TRIBUNAL IN SETTING ASIDE THE ORDER OF LD. CIT(A) BACK TO THE FILE OF A O WHICH, ACCORDING TO ASSESSEES AR OUGHT TO BE A TYPOGRAPHICAL ERROR AND ACCORDING TO HIM, REMAND OUGHT TO HAVE BEEN BACK TO LD. CIT(A) INSTEAD OF AO. 2. WE NOTE THAT THIS TRIBUNAL BY ORDER DATED 01. 05.2018 IN ASSESSEES APPEAL FOR AY 2008-09 HELD AT PARA 7 AS UNDER: 7. AT THE OUTSET, THE LD. SENIOR COUNSEL DREW OU R ATTENTION TO GROUND NO. 9 WHEREIN THE ASSESSEE HAS ASSAILED THE DECISION OF THE LD. CIT(A ) ON THE GROUNDS THAT THOUGH THE REMAND REPORT WAS CALLED FOR THE LD. CIT(A) DID NOT GIVE A N OPPORTUNITY TO THE ASSESSEE TO REBUT THE SAME WHICH IS IN VIOLATION OF NATURAL JUSTICE. WE NOTE THAT THE LD. CIT(A) HAS CALLED FOR THE REMAND REPORT AND HAVE NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO REBUT THE CONTENTS OF THE REMAND REPORT WHICH IS IN VIOLATION OF NATURAL JUST ICE. WE NOTE THAT THE LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER WHILE PASSING THE ORDER. T HEREFORE, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO HIM THAT THE COPY OF REMAND REPORT MAY BE FURNISHED TO THE ASSESSEE AND THE ASSESSEE SHOULD BE GRANTED AN OPPORTUNITY TO REBUT THE SAME AND THE APPEAL TO BE DECIDED AFRESH AFTER HEARING THE ASSESSEE. 2 MA NO.217/KOL/2018 M/S. INDIA HOU SING., AY- 2008-09 3. WE HAVE GONE THROUGH OUR LOG BOOK NOTING AND FOU ND THAT THIS ISSUE NEEDS TO BE REMANDED BACK TO LD. CIT(A) AND NOT TO AO AS DIRECT ED BY US IN THE IMPUGNED ORDER AND WHICH IS CLEARLY IMPLIED ON BARE READING OF THE IMP UGNED ORDER ITSELF. SO, WE FIND MERIT IN THE MISC. APPLICATION FILED BY ASSESSEE. WE NOTE T HAT SINCE THE LD. CIT(A) AFTER CALLING FOR REMAND REPORT OF AO, DID NOT GIVE AN OPPORTUNITY TO ASSESSEE TO REBUT THE CONTENTS OF IT ( WITHOUT GIVING A COPY OF REMAND REPORT TO ASSESSEE )AND HAS PASSED THE ORDER, WHICH WAS ASSAILED BEFORE US. SO, TAKING NOTE OF THE AFORESA ID VIOLATION OF NATURAL JUSTICE ON THE PART OF LD. CIT(A), WE HAD SET ASIDE THE ORDER OF LD. CIT(A ) AND HAD DESIRED TO SEND THE MATTER BACK TO LD. CIT(A) AND EXPRESSED SO IN THE OPEN COU RT AS DISCERNED FROM OUR LOG BOOK. SO, WE FIND THAT THERE IS A TYPOGRAPHICAL MISTAKE WHILE SETTING ASIDE THE MATTER. SO, IN PLACE OF OUR ORDER, THE EXPRESSION REMAND THE MATTER BACK TO AO TO BE SUBSTITUTED WITH REMAND THE MATTER BACK TO LD. CIT(A). MISC. APPLICATION OF ASSESSEE IS ALLOWED TO THIS EXTENT. 4. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 21 ST DECEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. INDIA HOUSING, 2A, SAHARA INDIA SADAN, SHAKESPEARE SARANI, KOLKATA-700 071 2 RESPONDENT DCIT, CIRCLE-33, KOLKATA. 3. 4. CIT(A)-XIX, KOLKATA. (SENT THROUGH E-MAIL) CIT- XI, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR