NIRMAL SARKAR ,KOLKATA vs. A.C.I.T.,CIRCLE-43, KOLKATA

At the outset, it is noted that there is a delay of 19 days on the part of the assessee in filing this appeal before the Tribunal. In this regard, the assessee has filed an application seeking condonation of the said delay and keeping in view the reasons given therein, I am satisfied that there was a sufficient cause for the delay on the part of the assessee in filing this appeal before the Tribunal. Even the ld. D.R. has not raised any Assessment Year: 2007-2008 Nirmal Sarkar objection in this regard. I, therefore, condone the said delay and proceed to dispose of the appeal of the assessee on merit.

The assessee in the present case is an individual, who is engaged in the business of retail trading of foreign liquor. The return of income for the year under consideration was filed by him on 29.03.2008 declaring total income of Rs.3,54,126/-. The said return was initially processed by the Assessing Officer under section 143(1) of the Act on 18.03.2009. The assessment, however, was subsequently reopened by the Assessing Officer and in the assessment completed under section 147/144 of the Act vide an order dated 01.03.2013, the total income of the assessee was determined by the Assessing Officer at Rs.16,98,870/- after making the following additions:- (i) Disallowance of Rs. 53,550/- depreciation on furniture (ii) Disallowance of purchase Rs. 18,000/- of Freeze (iii) Investment in Kanika Rs.2,01,824/- Hardware (iv) Disallowance of licence Rs. 36,000/- and taxes (v) Disallowance of rent Rs. 20,000/- (vi) Disallowance of repairs to Rs. 56,348/- building (vii) Disallowance of salary Rs. 59,500/- and bonus (viii) Inflated purchases Rs.3,06,248/- (ix) Capital contribution Rs.4,95,721/-

Against the order passed by the Assessing Officer under section 144/147, an appeal was preferred by the assessee before the ld. CIT(Appeals) disputing the various additions made by the Assessing Officer and since there was no satisfactory compliance on the part of the assessee to the notices issued by him fixing the appeal of the assessee for hearing from time to time, the ld. CIT(Appeals) dismissed the appeal of the assessee for non-prosecution vide his appellate order dated Assessment Year: 2007-2008 Nirmal Sarkar 30.10.2019. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

At the time of hearing before the Tribunal fixed today, none has appeared on behalf of the assessee. In the preliminary issue raised in Ground No. 1, the assessee has challenged the impugned order passed by the ld. CIT(Appeals) dismissing the appeal of the assessee for non- prosecution on the ground that proper and sufficient opportunity of being heard was not given to him by the ld. CIT(Appeals). In this regard, it is noted that the assessee not only had filed a written submission during the course of appellate proceedings before the ld. CIT(Appeals) but had also sought time for making a further submission. As clearly mentioned by the ld. CIT(Appeals) in his impugned order, adjournment petitions were also filed by the assessee on the various dates of hearing. It appears that the ld. CIT(Appeals), however, did not give proper and sufficient opportunity to the assessee to make further submission and proceeded to dismiss the appeal of the assessee for non-prosecution without going into the merits of the issues involved in the appeal of the assessee and without considering the written submission filed by the assessee. Moreover, the ld. CIT(Appeals) as per the provisions of sub-section (6) of section 250 was required to dispose of the appeal of the assessee vide an order in writing stating the points for determination, the decision thereon and the reasons for the decision. It is observed that the impugned order passed by the ld. CIT(Appeals) does not comply with these requirements. The ld. D.R. has submitted that this matter may be remitted back to the ld. CIT(Appeals) for disposing of the appeal of the assessee afresh on merit in accordance with law after giving proper and sufficient opportunity of being heard to the assessee. Keeping in view all these facts and circumstances of the case, I set aside the impugned order passed by the ld. CIT(Appeals) dismissing the appeal of the assessee for non- prosecution and remit the matter back to him for disposing of the appeal Assessment Year: 2007-2008 Nirmal Sarkar of the assessee afresh on merit in accordance with law after giving proper and sufficient opportunity of being heard to the assessee.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on June 15, 2020.