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Income Tax Appellate Tribunal, KOLKATA BENCH, “SMC” AT KOLKATA
Before: Shri A. T. Varkey, JM]
This is an appeal preferred by the Assessee against the order of Ld. CIT(A) – 19, Kolkata dated 02.05.2018 for Assessment Year 2012-13.
At the outset, the learned AR drew our attention to the fact that the ex-parte assessment order passed by the AO 24.03.2015 u/s. 143(3)/144 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”). The learned AR drew our attention to the fact that the notice was received by the assessee on the evening of 20.03.2015 and the date of hearing was fixed on 23.03.2015 and 21st and 22nd March, 2015 was Saturday and Sunday. According to Ld. AR, when assessee along with his AR went to the office of the ITO to attend the hearing on 23.03.2015 then to their surprise they were told that assessment has already been framed against the assessee. According to Ld. AR, the assessee did not get proper opportunity before the AO to represent his case. Therefore, citing the decision of the Hon’ble Supreme Court in the case of Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC), the Ld. AR pleads that the matter be remanded back to the AO for fresh adjudication. The Ld. CIT, DR opposed the remanding of the proceedings, however, contended that even if the Tribunal remands the matter back to AO, the Ld. Counsel should undertake to participate in the proceedings before the AO.
Sanchit Sachdev AY- 2012-13 3. Having heard both the parties and perused the records, we note that the AO made the assessment u/s. 143(3)/144 of the Act. We further note that the notice dated 19.03.2015 was received by the assessee on the evening of 20.03.2015 and the date of hearing was fixed on 23.03.2015 and the next two days were holidays (i.e. 21st and 22nd March, 2015 was Saturday and Sunday). And when the Ld. AR accompanied by the assessee promptly appeared on 23.03.2015 before the AO along with the documents and explanation to the query raised in the notice dated 19.03.2015, to their astonishment was told that the assessment against the assessee has already been framed by the AO by adding the entire deposit in the bank accounts, which action of AO according to Ld. AR is in gross violation of Natural Justice. Therefore, the Ld. AR pleads that the assessee did not get proper opportunity before the AO to represent his case. According to Ld. AR, given an opportunity, the assessee is ready to participate and produce all the documents to represent his case properly before the AO, therefore, citing the decision of Hon’ble Supreme Court in the case of Tin Box Company (supra), the assessee pleads that the matter may be remanded back to the AO since there was no proper opportunity to discharge the onus upon the assessee. We note that the Hon’ble Supreme Court in Tin Box Company, supra has held as under:
“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 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.
Sanchit Sachdev AY- 2012-13 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 aforestated.”
Since we note that the assessee could not get proper opportunity before the AO during the assessment proceedings, in the interest of justice and fair play the matter is remanded back to the file of AO for fresh adjudication in accordance to law after providing reasonable opportunity of being heard to the assessee and the assessee is directed to cooperate and participate in the proceedings diligently before the AO without fail.
In the result, the appeal of assessee is allowed for statistical purposes.
Order is pronounced in the open court on 17th May, 2019