Madhumita Basu, Kolkata V. DCIT, Circle - 50, Kolkata, Kolkata

MA 72/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6782 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI A.T. VARKEY, JM] M.A. NO. 72/KOL/2018 (A/O, ITA NO. 185/KOL/2017) ASSESSMENT YEAR: 2008-09 MADHUMITA BASU.........................................................................APPELLANT C/O. D.J. SHAH & CO. KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA 700 020. [PAN: AJQPB 3642 J] DCIT, CIRCLE 50 KOLKATA...............................RESPONDENT DS BLOCK 2, 3 & 4 MANIKTALA CIVIC CENTRE, UTTARPAN MARKET COMPLEX, ULTADANGA, KOLKATA 700 054. APPEARANCES BY: SHRI MIRAJ D. SHAH, AR APPEARING ON BEHALF OF THE ASSESSEE. SHRI S. DASGUPTA, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 22, 2018 DATE OF PRONOUNCING THE ORDER : JUNE 22, 2018 ORDER PER P.M. JAGTAP, AM BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNALS ORDER DATED 20.04.2018 PASSED IN ITA NO. 185/KOL/2017 ON THE FOLLOWING GROUNDS: 1. THE HONBLE ITAT DISPOSED THE APPEAL HOLDING THAT THE ORDER OF THE LD. CIT(A) WAS AN EX-PARTE ORDER AND THE LD. CIT(A) HAS NOT CONSIDERED THE MERIT OF THE CASE AND THEREFORE THE MATTER WAS SET ASIDE TO THE FILE OF THE CIT(APPEALS) FOR FRESH ADJUDICATION. 2. WE SUBMIT THAT NO SUCH ARGUMENT WAS MADE BY THE APPELLANT BEFORE THE HONBLE TRIBUNAL. IN FACT THE ORDER OF THE LD. CIT(A) IN PARA 3, IT IS CLEARLY STATED THAT HE HAD DISPOSED THE APPEAL BASED ON THE WRITTEN SUBMISSION FILED. THE LD. CIT(A) HAS DEALT WITH THE ISSUE ON THE MERITS OF THE CASE AND HAS DISMISSED THE APPEAL OF THE ASSESSEE. 2 MA NO. 72/KOL/2018 ASSESSMENT YEAR: 2008-09 MADHUMITA BASU 3. BEFORE THE HONBLE TRIBUNAL, THE ASSESSEE HAS FILED COPY OF PAPER BOOK CONTAINING 39 PAGES WHICH CONTAINED A COPY OF THE WRITTEN SUBMISSION FILED BEFORE THE LD. CIT(A) ON 09.05.2016. 4. THAT THE APPELLANT HAD MADE SUBMISSIONS ON THE ISSUES REGARDING THE VALIDITY U/S 147 OF THE INCOME TAX ACT, 1961 AND THIS ISSUE WAS DISCUSSED IN DETAIL AT THE TIME OF HEARING BEFORE THE HONBLE BENCH. 5. IT IS SUBMITTED THAT THE HONBLE TRIBUNAL HAS DISPOSED THE APPEAL ON ERRONEOUS FACTS AND THEREFORE THE ORDER OF THE HONBLE TRIBUNAL DESERVES TO BE RECALLED AND THE APPEAL SHOULD BE HEARD ON MERITS. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE RELEVANT PAPERS OF THE PAPER BOOK OF THE ASSESSEE AVAILABLE ON RECORD AS WELL AS THE RELEVANT PORTIONS OF THE ORDERS OF THE AUTHORITIES BELOW ARE MARKED BY THE MEMBERS OF THE BENCH WHO HEARD THE APPEAL WHICH SUPPORTS THE CASE OF THE ASSESSEE THAT ITS APPEAL WAS HEARD BY THE BENCH ON MERIT. MOREOVER, IT IS ALSO NOTED THAT THE APPEAL OF THE ASSESSEE WAS DISPOSED OF BY THE LD. CIT(A) VIDE HIS IMPUGNED ORDER ON MERIT AFTER TAKING INTO CONSIDERATION THE WRITTEN SUBMISSION FILED BY THE ASSESSEE AND A COPY OF THE SAID WRITTEN SUBMISSION WAS ALSO PLACED ON RECORD BY THE ASSESSEE IN THE PAPER BOOK FILED BEFORE THE TRIBUNAL. WE THEREFORE FIND THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 20.04.2018 (SUPRA) IN ASSUMING THAT THE IMPUGNED ORDER OF THE LD. CIT(A) WAS PASSED EX-PARTE AND NOTHING WAS DECIDED ON MERITS AND IN DISPOSING OF THE APPEAL OF THE ASSESSEE ON THE BASIS OF SUCH WRONG ASSUMPTIONS OF FACTS, AS RIGHTLY POINTED OUT BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION. AS THE SAID MISTAKE IS APPARENT FROM RECORD, WE RECTIFY THE SAME BY RECALLING THE ORDER OF THE TRIBUNAL DATED 20.04.2018 PASSED IN ITA NO. 185/KOL/2017 AND 3 MA NO. 72/KOL/2018 ASSESSMENT YEAR: 2008-09 MADHUMITA BASU RESTORING THE APPEAL OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAME FOR HEARING AFRESH BEFORE THE REGULAR BENCH. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE, 2018. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22/06/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. MADHUMITA BASU, C/O. D.J. SHAH & CO. KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA 20. 2. DCIT, CIRCLE 50, DS BLOCK 2, 3 & 4, MANIKTALA CIVIC CENTRE, UTTARPAN MARKET COMPLEX, ULTADANGE, KOLKATA 54. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA