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Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
Before: Shri P.M. Jagtap & Shri A. T. Varkey, JM]
ORDER
Per Shri A.T.Varkey, JM
1. This is an appeal preferred by the assessee against the order of Ld. CIT(A)-5, Kolkata dated 26.10.2016 for AY 2012-13.
At the outset, ld. AR of the assessee drew our attention to the fact that the order passed by the Ld. CIT(A) is an ex parte order because notice was not addressed properly so the notice had returned back to the Ld. CIT(A)’s office. It was also brought to our notice that the AO has also passed the ex parte assessment order u/s. 144 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for the same reason that notices were not served on the assessee. Therefore, according to Ld. AR, no proper opportunity was given to the assessee before the AO while assessment was framed. The Ld. DR opposed any remanding back to either of the authorities below. According to him, the assessee should have been vigilant and the law does not help the person who sleeps over his rights. 3. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the order of the Ld. CIT(A) is an ex parte order and he has acknowledged that the notice fixing the date of hearing has returned back by the postal authorities. Thus, we note that the assessee has not been put on notice before the impugned order has been passed. We also note that the AO has passed the order u/s. 144 of the best Janaki Suppliers Pvt. Ltd, AY- 2012-13 judgment assessment and the Ld. AR pointed out that no notices were served upon the assessee so the assessee could not effectively participate during the assessment proceedings. In the aforesaid circumstances, we are of the opinion that since the assessee did not get proper opportunity before the AO, the assessee should be given an opportunity before the AO to place its case. Hence, we set aside the orders of the lower authorities and restore the matter back to the file of AO to adjudicate afresh after affording adequate opportunity of being heard to the assessee. In this regard we rely on the order of the Hon’ble Supreme Court in the case of Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC), wherein the Hon’ble Supreme Court 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. 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.”
In the result, the appeal of assessee is allowed for statistical purposes. Order is pronounced in the open court on 15th February, 2019 Sd/- Sd/- (P. M. Jagtap) (Aby. T. Varkey) Vice President Judicial Member Dated : 15th February, 2019 Jd.(Sr.P.S.)
Janaki Suppliers Pvt. Ltd, AY- 2012-13 Copy of the order forwarded to:
Appellant – Janaki Suppliers Pvt. Ltd., Diamond Prestige, Room No. 310, 41A, A.J.C. Bose Road, Kolkata-700 017. Respondent – ITO, Ward-13(2), Kolkata. 2 3. CIT(A)-5, Kolkata (sent through e-mail) CIT- , Kolkata. 4.
DR, ITAT, Kolkata. (sent through e-mail)