M/S EVERGLOW INVESTMENT PVT. LTD.,KOLKATA vs. ITO, WD-12(2), KOLKATA, KOLKATA

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ITA 1028/KOL/2016Status: DisposedITAT Kolkata30 September 2016AY 2005-20063 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found merit in the assessee's submission that it did not receive notices from the CIT(A), violating the principles of natural justice. The case was therefore remitted back to the CIT(A) for a fresh decision.

What were the facts?

The assessee's return for AY 2005-06 was processed, and later re-assessed under Section 147, with additions made by the AO. The CIT(A) dismissed the assessee's appeal ex parte due to non-compliance.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal ex parte without providing the assessee with an adequate opportunity of being heard.

Which sections of the Income-tax Act were involved?

Section 147,Section 143(3),Section 40(a)(ia),Section 250

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, BENCH ‘D’ KOLKATA

Before: Hon’ble Shri S.S.Viswanethra Ravi, JM & Dr.Arjun Lal Saini, AM ]

Hearing: 29.09.2016

The captioned appeal filed by the assessee pertaining to A.Y.2005-06, is directed against the order passed by the Commissioner of Income Tax –(Appeals)-9, Kolkata in Appeal No.684/C.I.T.(A)-9/Wd-12(2)/2014-15/Kol, dated 30.03.2016, which in turn arises out of an order passed by the Ld. Assessing Officer u/s 147/143(3) of Income Tax Act, 1961 (in short, ‘the Act’) dated 06.10.2009.

2.

The facts of the case are stated in brief. The Assessee had filed its return of income for A.Y.2005-06 on 21.12.2005, declaring total income of Rs.1,90,630/-. The case was duly processed on 11.01.2007 u/s 143(1) of the Act. Subsequently the case was selected for re-assessment u/s 148 of the Act and the AO has completed the assessment by making additions on account of share application money, expenses disallowed u/s 40(a)(ia) of the Act and excess claim of liability. Aggrieved from the order of the ld AO the assessee filed an appeal before the ld. CIT(A), who has dismissed the appeal of the assessee by observing the followings :- “In this case, notice u/s 250 was issued on 26/12/2015 by which date of hearing was fixed on 23/03/2015 however, neither anybody attended nor any written reply was received on the date of hearing. Therefore, fresh notices dated 12/05/2015, 19/06/2015,

2 M/s. Everglow Investment Pvt. Ltd. A..Y.2005-06 28/07/2015, 04/12/2015 and 10/03/2016 respectively were issued but there was no compliance on the part of the appellant. Since there is no compliance during the appellant proceedings and there is no new fact/details available for consideration, I do not find any infirmity in the AO’s order. Therefore, appeal is dismissed.”

3.

Not being satisfied with the order of ld. CIT(A), the assessee is in further appeal before us.

4.

Although in this appeal the assessee has raised multiple grounds of appeal but at the time of hearing the solitary grievance of the assessee has been confined to only ground No.1 which relates to an ex parte order made by the ld. CIT(A) without giving an opportunity of being heard to the assessee. The ld. AR for the assessee has submitted that the assessee under consideration never received any notices from the office of the ld. CIT(A). Since, the assessee did not receive any notice of hearing from the ld. CIT(A), at all, therefore, he could not file any written submission and could not attend the office of the ld. CIT(A). In this ways the ld. CIT(A) has passed the order without giving an opportunity of being heard to the assessee which is against the principle of natural justice.

5. On the other hand, the ld. DR for the revenue has primarily reiterated the stand taken by the ld. CIT(A) which we have already noted in the earlier para and is not being repeated for the sake of brevity.

6. Having heard the rival submission, perused the material available on record, we are of the view that there is merit in the submissions of the assessee, as the proposition canvassed by the ld. AR for the assessee are supported by the facts cited by him above. He explained that the assessee did not receive any notice of hearing from the ld. CIT(A). Therefore, he could not file any written submission and could not attend the office of the ld. CIT(A). Even ld DR for the Revenue has agreed on this. Therefore, considering the above cited factual position we are of the view that this issue requires fresh examination by the ld. CIT(A). Accordingly, we remit the case

3 M/s. Everglow Investment Pvt. Ltd. A..Y.2005-06 back to the ld. CIT(A) to decide the appeal afresh after giving adequate opportunity of being heard to the assessee. 7. In the result, all the grounds of appeal of the assessee are allowed for statistical purposes.

Order pronounced in the court on 30.09.2016.

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