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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri P.M. Jagtap, AM & Shri A. T. Varkey, JM]
ORDER Per Shri A.T.Varkey, JM This appeal preferred by the assessee is against the order of Ld. CIT(A)-18, Kolkata dated 17.08.2016 for AY 2008-09.
At the time of hearing, Ld. Counsel for the assessee brought to our notice that in this case the AO passed the assessment order ex parte u/s. 144 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”). The Ld. CIT(A) has also passed the order ex parte. Since there was change in address of the assessee from Kolkata to Delhi the assessee did not receive any notice for hearing. Hence, he urged before the bench to set aside the orders of the lower authorities for passing fresh order after affording reasonable opportunity of being heard to the assessee.
In the light of the aforesaid facts we find force in the submission of the Ld. AR that no proper opportunity was given to assessee by AO during the assessment proceedings and so we are, therefore, of the opinion that assessee did not get proper opportunity before the AO during assessment proceedings. The Hon’ble (three judge bench) of the Hon’ble Supreme Court in Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC) has held as under:
Ranjeet Retail Garments Trading Private Ltd., AY 2008-09 “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.”
Respectfully following the aforesaid decision of Hon’ble Supreme Court cited supra, we set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee. The assessee is also directed to inform the AO about the change in address where the notice has to be served. Therefore, the appeal of assessee is allowed for statistical purposes.
In the result, appeal of assessee is allowed for statistical purposes. Order is pronounced in the open court on 14th September, 2018.
Sd/- Sd/- (P. M. Jagtap) (Aby. T. Varkey) Accountant Member Judicial Member
Dated : 14th September, 2018 Jd.(Sr.P.S.)
Ranjeet Retail Garments Trading Private Ltd., AY 2008-09 Copy of the order forwarded to:
Appellant – M/s. Ranjeet Retail Garments Trading Private Ltd., C/o Chhaparia & Associates, Chartered Accountants, 8, Camac Street, Shantiniketan Building, 5th floor, Room No. 2, Kolkata-700 017. 2 Respondent – ITO, Ward-9(3), Kolkata
3. CIT(A)-18, Kolkata. (sent through e-mail) CIT – , Kolkata 4.
5. DR, ITAT, Kolkata. (sent through e-mail)