DEBDARSHAN VINIMAY PVT. LTD.,KOLKATA vs I.T.O.,WARD-6(1), KOLKATA

Income Tax Appellate Tribunal, “C”, BENCH KOLKATA

Before: SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM

For Appellant: Shri Manish Tiwari, FCA

For Respondent: Shri Jayanta Khanra, JCIT, Sr. DR

Hearing: 20/12/2019Pronounced: 31/12/2019

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 straightway agree with the assessee’s submission that the ITO had not given to the assessee proper opportunity of being heard."

Debdarshan Vinimay Pvt. Ltd. Assessment Year: 2009-10 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 setting 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 ?"

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 assessee.

The appeals are allowed. The order under challenge is set aside. The assessment orders, 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 aforestated. No order as to costs.”

Considering the above, we are of the view that one more opportunity should be given to the assessee to plead his case before Assessing Officer. Therefore, we set aside the order of the ld. CIT(A) and remit this issue back to the file of the Assessing Officer for de novo adjudication. Thus, the appeal of assessee is allowed for statistical purposes.

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

Order pronounced in the Court on 31.12.2019

DEBDARSHAN VINIMAY PVT. LTD.,KOLKATA vs. I.T.O.,WARD-6(1), KOLKATA