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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: Sri Manish Borad& Sri Sonjoy Sarma
order
: April 5th, 2022 ORDER
Per Manish Borad, Accountant Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short “AY”) 2012-13 is directed against the order of ld. Commissioner of Income-tax (Appeals)-7, Kolkata [in short ld. “CIT(A)”] dated 03.10.2019 vide Appeal No.1097/CIT(A)-7/Circle-5(1)/Kol/15-16which is arising out of the assessment order framed u/s 143(3) of the Income Tax Act, 1961 (in short the “Act”) dated 20.03.2015 by DCIT, Circle-5(1), Kolkata.
2. Registry has informed that the present appeal is time barred by 757 days. Ld. Counsel for the assessee prayed for condoning the delay by submitting the affidavit placed on record. Per contra, the ld. D/R opposed the request for condonation of delay. We, after perusing the affidavit as well as the available records, find that the order of ld. CIT(A) is ex-parte. The assessee failed to receive any notice for date of hearing fixed on 13.09.2018 & 08.08.2019. Ld. CIT(A) passed the order on 03.10.2019. The assessee did not receive the order in normal course. It was only on going through the e- portal that the assessee came to know that an ex-parte order has been I.T.A. No.: 609/Kol/2021 Assessment Year: 2012-13 R K Agencies Pvt. Ltd. passed by the ld. CIT(A). The assessee has stated in the affidavit that copy of the impugned order was downloaded from e-portal on 28.10.2021 and immediately, thereafter, the appeal has been filed. We find merit in the contents of the affidavit given by the assessee and keeping the larger interest of justice, we condone the delay and admit the appeal for adjudication.
The assessee is in appeal before the Tribunal raising the following grounds:
“1. Because the ld. Commissioner of Income Tax (Appeals)-7, Kolkata erred in law as well as in facts in dismissing the appeal of the appellant by passing of his ex parte order dated 3rd October, 2019.
Because the ld. Commissioner of Income Tax (Appeals)-7, Kolkata erred in law as well as in facts in holding that, the law assists those who are vigilant and not those who sleep over their rights i.e. vigilantibus non dormientibus, jurasubveniunt, and his such finding is incorrect as no notice for hearing was received by the appellant from the office of the ld. CIT (Appeals)-7, Kolkata.
3. Because the ld. Commissioner of Income Tax(Appeals)-7, Kolkata erred in law as well as in facts in sustaining the addition made by the ld. ACIT, Circle-5(1), Kolkata vide his order u/s 143(3) dated 20th March, 2015 on account of Employees Contribution to PF u/s 36(1)(va) of Rs.6,84,993/-, Loss on food grains of Rs.6,81,478/-, Power & Fuel of Rs. 15,81,850/-, Pollution control fee of Rs. 1,80,000/-, without granting any opportunity of hearing, and as such the addition so sustained are based on his surmises and conjunctures and grossly unjustified, erroneous and unsustainable, and are contrary to the facts and material on record and provision of law.
Because the ld. Commissioner of Income Tax(Appeals)-7, Kolkata erred in law as well as in facts in relying upon the ratio of the judgments as mentioned in his order with regard to dismissing of the appeal for non-prosecution as the same are not applicable and are on different facts and point of law and hence distinguishable.
The appellant craves leave to add further ground of appeal
or alter the grounds at the time of hearing.”
4. At the outset, ld. Counsel for the assessee requested that since the assessee did not get any opportunity to file relevant documents and submissions before ld. CIT(A), one more opportunity should be given and the issues raised in the instant appeal may be set aside to the file of ld. CIT(A). Ld. D/R was fare enough not to oppose his request.
5. We, therefore, under the given facts and circumstances of the case, are of the considered view that since the order of the ld. CIT(A) is ex-parte and no discussion has been made on the merits of the case, we, in the I.T.A. No.: 609/Kol/2021 Assessment Year: 2012-13 R K Agencies Pvt. Ltd. interest of justice, set aside the impugned order and remit it back to the file of the ld. CIT(A) for deciding the issues raised before us by way of a speaking order. We also direct the assessee to remain vigilant in receiving the notices of hearing of the ld. CIT(A) and should not request for any adjournment unless otherwise required for reasonable cause and should file all necessary documents so as to facilitate ld. CIT(A) for passing the speaking order. Needless to mention that the assessee should be given proper opportunity of being heard.
In the result, the appeal of the assessee is allowed for statistical purposes.
Kolkata, the 5th April, 2022.