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Income Tax Appellate Tribunal, “B” BENCH : KOLKATA
Before: Shri M.Balaganesh, AM & Shri S.S. Viswanethra Ravi, JM
This appeal by the Revenue is against the order of the Commissioner of Income Tax(Appeals), XII, Kolkata for the A.Y 2008-09.
The appellant Revenue by a letter dt. 25-01-2016, copy of the same is on record, sought to adjudicate the following additional grounds of appeal
, which reads as under:-
1. Whether on the fact and circumstances of the case ld. CIT(A)-XII, Kolkata was justified to accept fresh document during the appeal proceeding and disposing the appeal on that basis without providing any opportunity to the AO to verify the same by way of asking remand report even though he has mandate under the provisions of section 250(2) of the IT Act 1961 to do so.
2. Whether on the fact and circumstances of the case ld. CIT(A)-XII, Kolkata was justified to violate the principles of natural justice by way of passing his order for A.Y 2008-09 which should have been set aside for re-adjudication before the assessing officer.”
The ld. DR submits that the appeal memo in Form No. 35 was instituted before the CIT-A, XII on 25-01-2011 and the order was passed by the CIT-A on 22-03-2011. He further argued that there was no opportunity to the AO as the appeal was disposed of within less than two months from the date of its institution. No notice as required under sub-section (2) of Section 250 of the Act was issued to the AO and CIT-A by violating the principle of natural justice deleted the additions made by the AO by accepting fresh/additional evidences. Ld. DR referred to page-2 of an affidavit deposed by Shri Sujit Kumar, JCIT, Range-10, Kolkata and argued that the assesse filed eight new additional documents before CIT-A, which were not at all before the AO for his verification/consideration. The CIT-A without affording opportunity to AO as mandated u/s. 250(2) of the Act allowed the appeal of assesse, which is against the principle of natural justice. The order of the CIT-A is not justified and prayed to remand the matter to the file of AO for his consideration.
On the other hand, the ld.AR submits that the appeal before the CIT-A was identified as an urgent case involving high volume of demand and in view of the letter dt. 9-2-2011 issued by the CCIT-IV, Kolkata, the CIT-A-XII, Kolkata has taken up the appeal on priority basis and referred to ordersheet dt. 11-02-2011. A notice dt. 2-3- 2011 was issued to the DCIT, Range-10, Kolkata directing him to send the assessment records along with paper book submissions and documents etc. filed by assessee during the course of assessment proceedings immediately and argued that it is incorrect to say that no opportunity was given to AO during the appellate stage, as the said letter passed through Addl.CIT, Range-10, Kolkata, who is range head for the said AO and referred to office seal acknowledging the receipt of said letter, which clearly shows that correspondence of instructing the AO to produce the said assessment records is known to concerned authority. After passing the impugned order by the CIT- 2 A, concerned AO (DCIT, Cir-10, Kolkata) filed appeal before the ITAT and no such ground was raised challenging the action of the CIT-A regarding principle of natural justice and non issuance of notice u/s. 250(2) of the Act. The ld. AR referred to the aforementioned ground nos. 1 & 2 of additional ground raised by the revenue and argued that there was no such contention raised by the appellant revenue about non receipt of notice and not knowing of proceedings before the CIT- A. Furthr, submitted that no additions and disallowances were made in the earlier years. Even after passing the impugned order of the CIT-A, no addition/disallowance was made in subsequent years. He argued that the additional grounds raised by the revenue has no basis and are liable to be dismissed.
Heard rival submissions and perused the record including the paper book details as available before us. The fact of filing of additional evidence as averred by JCIT, Range-10, Kolkata in his affidavit dt. 24-02-2014 were filed before the CIT-A for the first time and were not before the AO in the assessment proceedings. There was no evidence showing the notice u/s. 250(2) of the Act was issued to AO by the CIT-A. Therefore, taking into consideration facts and circumstances of the case, submissions of both the parties and in the interest of natural justice, we deem it fit and proper to remand the issues to the file of AO for his de novo consideration. The AO shall pass an order as per law, after giving opportunity to the assessee to substantiate its contentions. The assesse shall be at liberty to file requisite evidences/explanation, if any, in support of its claims and contentions. Thus, additional grounds raised by the revenue are allowed and grounds raised by the revenue in Form- 36 are allowed for statistical purpose. 3
In the result, the appeal of revenue in A.Y 2008-09 is allowed for statistical purpose. Order pronounced in the Court on 21 .08.2018