M/S. TOUCH POINT SALES PVT. LTD.,KOLKATA vs. ITO, WARD - 13(2), KOLKATA, KOLKATA

The captioned appeal filed by the assessee, pertaining to assessment year 2013-14, is directed against the order passed by the Commissioner of Income Tax (Appeal)-5, Kolkata in appeal no. 161/CIT(A)-5/Wd-13(2)/15-16/Kol, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 of the Income Tax Act, 1961 (in short the “Act”) dated 28/03/2016.

At the time of hearing none appeared on behalf of assessee in spite of issuance of notice for hearing more than one occasion and Ld. Departmental

At the outset itself, ld. D.R. for the Revenue submitted that the ld. CIT(A) did not take remand report from Assessing Officer to adjudicate the issue. During the assessment proceedings, none appeared on behalf of the assessee and assessee did not make compliance of notices u/s 142(1) / 143(2) of the Act; therefore Assessing Officer could not verify the share application money so credited in the books of accounts of the assessee. During the appellate stage ld. CIT(A) ought to have given opportunity to the Assessing Officer to examine the share capital credited in the books of the assessee. The ld. D.R therefore prayed the Bench that the 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 have heard the ld. D.R. and perused the material available on record. We note that the assessment was framed by Assessing Officer u/s 144 of the Act and assessee did not make compliance of notices therefore, ld. CIT(A) ought to have taken remand report from Assessing Officer to enable him to verify the claim of the assessee and also we note that the ld. CIT(A) did not consider the assessee’s submission properly based on the material available before him hence it is a violation of principle of natural justice. We note that it is settled law that principles of natural justice and fair play require that the effected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, 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 affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. 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. Page | 2

In the result, the appeal of the assessee is allowed for statistical purposes.