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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: Shri P.M. Jagtap & Shri S.S. Viswanethra Ravi
Per Shri P.M. Jagtap, A.M. :- This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-1, Kolkata dated 28.03.2018 passed ex-parte and the same is being disposed of along with the Stay Application filed by the assessee being S.A. No. 70/KOL/2018.
The assessee in the present case is a Company, which is engaged in the business of design, supply and installation of paint finishing systems and conveyors on a turnkey basis. The return of income for the year under consideration was filed by it on 28.11.2013 declaring a loss of Rs.11,90,70,474/-. In the assessment completed under section 143(3) vide an order dated 31.03.2016, the total income of the assessee was determined by the Assessing Officer at Rs.89,60,651/- after making the following additions:- (1) Share application money treated as Rs.9,70,00,000/- unexplained cash credits under section 68 (2) Disallowance of warranty expenses Rs.2,60,00,000/- (3) Disallowance under section 40(a)(ia) Rs. 43,54,754/- (4) Rs. 1,05,232/- Disallowance of interest on delayed payment of taxes (5) Disallowance of penalty Rs. 3,64,000/- (6) Disallowance of financial charges Rs. 2,07,139/-
Against the order passed by the Assessing Officer under section 143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals) disputing the various additions made by the Assessing Officer and since there was no satisfactory compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the ld. CIT(Appeals) dismissed the appeal of the assessee vide his appellate order dated 28.03.2018 passed ex-parte.
Assessment year: 2013-2014 & S.A. No.70/KOL/2018 (in Assessment Year: 2013-2014 Page 3 of 5 Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.
We have heard the arguments of both the sides and also perused the relevant material available on record. In support of the preliminary issue raised in Ground No. 1 challenging the impugned order passed by the ld. CIT(Appeals), the ld. Counsel for the assessee has submitted that the appeal of the assessee was fixed for hearing by the ld. CIT(Appeals) on three dates, i.e. 14.03.2018, 21.03.2018 and 27.03.2018. He has submitted that the assessee had sought adjournments on 14.03.2018 and 21.03.2018 and granting the same, the appeal of the assessee was fixed for hearing by the ld. CIT(Appeals) on 27.03.2018. He has invited our attention to paragraph no. 3 of the impugned order of the ld. CIT(Appeals) to point out that the appeal of the assessee was dismissed by the ld. CIT(Appeals) vide his impugned order passed on 28.03.2018 on the ground that none appeared on behalf of the assessee on 27.03.2018 nor any written submission was filed by the assessee. He has contended that C.A. Shri P.B. Chhapgar, Authorized Representative of the assessee not only attended the office of the ld. CIT(Appeals) but also filed a written submission along with the application for additional evidence, which was duly received by the office of the CIT(Appeals) on 27.03.2018. He has submitted that the staff member of the ld. CIT(Appeals)’s office, however, informed the authorized representative of the assessee that the hearing would not take place on 27.03.2018 since the ld. CIT(Appeals) was very busy. He also informed that the next hearing would be fixed on some other date and notice of the same would be issued to the assessee. He has contended that it was thus not a case of non-appearance or non-compliance on the part of the assessee before the ld. CIT(Appeals) as on 27.03.2018 as wrongly presumed by the ld. CIT(Appeals) and the ld. CIT(Appeals) has dismissed the appeal of the assessee vide his impugned order passed ex-parte on the basis of such wrong presumption without giving proper and sufficient
Assessment year: 2013-2014 & S.A. No.70/KOL/2018 (in Assessment Year: 2013-2014 Page 4 of 5 opportunity of being heard. Since these submissions made by the ld. Counsel for the assessee are duly supported by the affidavit filed by C.A. Shri P.B. Chhapgar affirming the relevant facts on oath as well as the submissions of the assessee dated 26.03.2018 duly received by the office of the ld. CIT(Appeals), we find that the impugned order is passed by the ld. CIT(Appeals) without giving proper and sufficient opportunity of being heard to the assessee and there is a clear violation of principle of natural justice. Even the ld. D.R. has not disputed this position, which is clearly evident from the relevant record placed before the Tribunal. We, therefore, set aside the impugned order passed by the ld. CIT(Appeals) ex-parte and remit the matter back to him for disposing of the appeal of the assessee afresh on merit after giving proper and sufficient opportunity of being heard to the assessee.
As a result of disposal of the appeal of the assessee, the Stay Application filed by the assessee being S.A. No. 70/KOL/2018 has become infructuous and the same is accordingly dismissed.
In the result, the Stay Application filed by the assessee is dismissed while the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on July 05, 2018.