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Income Tax Appellate Tribunal, “C”, BENCH KOLKATA
Before: SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM
सुनवाईक�तार�ख/ Date of Hearing : 16/12/2019 घोषणाक�तार�ख/Date of Pronouncement : 26/02/2020 आदेश / O R D E R Dr. A.L. Saini, AM:
The captioned appeal filed by the assessee, pertaining to assessment year 2015-16, is directed against the order passed by the Commissioner of Income Tax (Appeal)-2, Kolkata in appeal no. 10455/CIT(A)-2/17-18, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short the “Act”) dated 12/12/2017.
At the outset itself, the ld counsel for the assessee submitted that during the appellate stage the assessee submitted additional evidences but the ld. CIT(A) did not send these additional evidences to the AO for his examination.The counsel submitted that ld. CIT(A) ought to have sent these additional evidences to the Assessing Officer for his examination and thereafter ld. CIT(A) ought to have taken rejoinder from the assessee to adjudicate the issues involved in the assessee`s appeal. The assessee submitted additional evidences vide para 1 of Rinki Plastics Pvt. Ltd. Assessment Year:2015-16 theorder of ld. CIT(A) wherein the assessee mentioned it its written submission as follows:
“4.3. Above apart it was duty to I.T.O that when names and full addresses were given to him of parties to who material was sold at discount, to issue notice u/s 133(6) or summon u/s 131 of the Act to verify the genuineness of sale at discount. On total wrong assumption that ‘company’ (assessee) has been declared a NPA in summarily made the addition which is liable to be knocked down. Alternatively, I.T.O. may now be asked by your goodself to verify the fact from parties.” Again the ld. Counsel submitted the written submission in respect of ground no. 2 wherein the assessee submitted as follows:
“5.2 SBI’s letter dt. 10.11.17 referred by Assessing Officer was never made available to afford opportunity to question the Bank’s wrong statement. As stated above, interest has been debited by bank and have also realized the same which is evident from their own statement at page 3 to referred above.” While submitting the written submission in respect of ground no. 3 the assessee submitted as follows:
“In West Bengal to do business such donations to pooja committees is to be paid as a commercial expedience. Company was alive, SBI was selling asset to realize its dues and old damaged material were being sold hence company was alive. Filing fees by a company to ROC is much. Late fee is not a penalty but compensatory as per Companies Act, 1956. Hence these are essential payments by a body corporate and allowable. It is prayed to allow relief in full and as prayed facts and submission may be got further verified by ITO as to evidence against ground No. 1 and 2”
Hence,the ld. Counsel for the assessee prayed the Bench that matter may be remitted back to the file of ld. CIT(A) with a direction to obtain proper remand report and adjudicate the issue in accordance to law.
We heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other material available on record. We note that additional evidences were filed by assessee before the ld. CIT(A) vide para nos. 1, 2 and 3 of the order of ld CIT(A), as noted above. These additional evidences were not sent by ld. CIT(A) to the Assessing Officer for his examination. Hence, it is a violation of Page | 2
Rinki Plastics Pvt. Ltd. Assessment Year:2015-16 principal of natural justice. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore,in the interest of justice, we restore the matter back to the file of Ld.CIT(A) for de novo adjudication and pass a speaking order after taking proper remand report from AO and affording sufficient opportunity of being heard to the assessee. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is allowed.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 26.02.2020