Amitabh Estates & Finance (P) Ltd., ... vs Assessee

Amitabh Estates & बनाम I.T.O, Ward-7(1) Finance (P) Ltd. 6/7A, / P-7, Chowringhee AJC Bose Road, Kolkata - V/s . Square, Aa ykar 700 017 Bh awan, Kolkata - 700 [PAN No. AACCA7357F] 069

अपीलाथ /Ap pellant .. यथ /Respondent

अपीलाथ क ओर से/By Appellant Shri K.M. Roy, FCA यथ क ओर से/By Respondent Shri David Z. Chowngthu, Add-CIT-DR सुनवाई क तार ख/Date of Hearing 30-06-2015 घोषणा क तार ख/Date of Pronouncement 03-07-2015

आदेश /O R D E R

PER Mahavir Singh, Judicial Member:-

This appeal by assessee is arising out of Commissioner of Income Tax (Appeals)-VIII, Kolkata in appeal No. 59/CIT(A)-VIII/Kol/11-12 dated 30.10.2014. Assessment was framed by ITO Ward-7(1) Kolkata u/s143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') vide his order dated 24.12.2010 for Assessment Year 2008-09.

2. Only issue in this appeal of assessee is against the order of CIT(A) confirming the levy of penalty by the Assessing Officer u/s 271(1)(c) of the Act. For this, assessee has raised following four grounds:-

"1. That the lower authority has passed an ex-parte order in absence of appellant in total violation of Section 274(1) of Income Tax Act, 1961.

2. The said penalty order in also in violation of Section 275(1)(a) as appeal under Section 246A(1)(a) had been preferred before CIT(Appeals)-VIII, Kolkata which is pending adjudication.

ITA No. 2288/Kol/2014 A.Y. 2008-09 Amitabh Estates & Finance (P) Ltd. v. ITO Wd-7(1) Kol Page 2

3. That the lower authority has failed to recognize that even though the subject matter of penalty is not the subject matter of appeal under Section 246A(1)(a), the appellant reserves the right to raise additional grounds at the time of hearing of appeal under section under Section 246A(1)(a) in terms of its submission in that appeal and under Section 250(5).

4. The lower authority has added as income has been fully disclosed and the classification of income as long term capital gains cannot be a ground for penalty under Section 271(1)© as there is no concealment of income. "

3. At the outset, Ld. Counsel for assessee stated that first issue is against the order of CIT(A) and that of the AO that there is a clear-cut violation of principle of natural justice as the AO while passing penalty order has not allowed the opportunity of being heard to the assessee. On query from the Bench, Ld. DR fairly conceded that 'yes' the issue can be remitted back to the file of AO for fresh adjudication for levy of penalty. As there is a consensus and assessee has raised a vital issue that there is a violation of principle of natural justice by the AO in passing the ex parte order as the details and facts are not examined by the AO. We deem it fit to remit back this appeal to the file of AO. Accordingly, appeal of assessee is set aside to the file of Assessing Officer. We direct him to pass a speaking order after allowing reasonable opportunity of being heard to the assessee.

4. In the result, appeal filed by assessee is allowed for statistical purposes.

Order pronounced in open court on 03/07/2015

Sd/- Sd/-

(B.P. Jain) (Mahavir Singh) Accountant Member Judicial Member Kolkata,

*Dkp दनांकः- 03/07/2015 कोलकाता ITA No. 2288/Kol/2014 A.Y. 2008-09 Amitabh Estates & Finance (P) Ltd. v. ITO Wd-7(1) Kol Page 3

आदेश क त ल प अ े षत / Copy of Order Forwarded to:-

1. अपीलाथ / Appellant-Amitabh Estates & Finance (P) Ltd. 6/7A, AJC Bose Road, Kolkata - 700 017

2. यथ / Respondent-ITO Ward-7(1), P-7 Chowringhee Square, Aaykar Bhawan, Kolkata-700 069

3. संबं धत आयकर आयु त / Concerned CIT Kolkata

4. आयकर आयु त- अपील / CIT (A) Kolkata

5. वभागीय त न ध, आयकर अपील य अ धकरण कोलकाता / DR, ITAT, Kolkata

6. गाड फाइल / Guard file.

By order/आदेश से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ धकरण, कोलकाता