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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri J. Sudhakar Reddy, AM & Shri A. T. Varkey, JM]
ORDER Per Shri A. T. Varkey, JM:
This is an appeal preferred by the assessee against the order of the Commissioner of Income Tax-14, Kolkata dated 31.03.2017 for assessment year 2008-09.
2. At the outset, the Ld. AR drew our attention to the fact that the impugned order of the CIT(A) is an ex parte order which fact we find it to be correct. According to the Ld. AR, the assessee could not appear before the Ld. CIT(A) because the notice of the hearing was received by the assessee after the impugned order was passed. Therefore, according to him, there is violation of natural justice, since the assessee did not get opportunity to appear and plead its case before the Ld. CIT(A) during the hearing. Further, the Ld. AR brought to our notice that the order of A.O was also ex parte. According to him, the AO without giving opportunity to the assessee to participate in the assessment proceedings had framed the assessment order. According to the Ld. AR, the assessee is a salaried person and someone has misused his bank account and made certain accommodation transactions which need to be explained before the A.O, so that the correct tax can be assessed in the right/correct hand in accordance with law.
Assessment Year: 2008-09 Abhijit Pandit
3. In the facts and circumstances of the case in hand, the Ld. DR does not have any objection if the matter is remitted back to the A.O for de novo assessment.
In the light of the aforesaid discussion, we are not repeating the fact for the sake of brevity. We note that the A.O has noted that despite notices being sent to the assessee, he has not complied with the same and therefore, the A.O has made the addition of Rs.3.15 crores. At the outset, we make it clear that we are not stating anything on the merits of the addition made by the A.O. The assessee’s main grievance is that due to certain unavoidable reason, he could not participate in the assessment proceedings which prompted the A.O to make the impugned addition in respect of the bank transaction. The assessee’s prayer is that the matter may be remitted back to the A.O for de novo assessment. We note that since the assessee could not participate in the assessment proceedings, the entire addition of the bank transaction has been made. In such a scenario, we take note of the decision of the Hon’ble Supreme Court in the case of Tin Box Company vs. CIT reported in (2001) 249 ITR 216 (SC) wherein the Hon’ble Supreme Court has directed that the assessee should be given proper opportunity during the assessment proceedings and failure to do so then the matter should be remitted back to the A.O. The order of the Hon’ble Supreme Court in Tin Box Co. (supra) is as under:
“1. 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 assessee's submission 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 selling out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh 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 ?
Assessment Year: 2008-09 Abhijit Pandit 4. In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the asses-see.
The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as afore-stated. No order as to costs.”
5. Respectfully following the decision of the Hon’ble Supreme Court in the Tin Box Co. (supra), we set aside the impugned order of the Ld. CIT(A) and remit the matter back to the A.O for de novo assessment after giving proper opportunity to the assessee. The assessee is directed to be diligent and to file his written submission, documents etc. which he intends to rely upon and the AO to frame the assessment order in accordance to law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 18.06.2021.