Dream Bake Pvt. Ltd., South 24 Parganas vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "A", KOLKATA

[Before & Hon'ble Sri N.K.Saini, AM & Hon'ble Sri George Mathan, JM] ITA No.999/Kol/2012 Assessment Year : 2006-07

(APPELLANT ) (RESPONDENT) Dream Bake Pvt. Ltd. -vs- D.C.I.T., Circle-10, Kolkata Kolkata (PAN:AABCD 1189 R)

For the Appellant Shri A.K.Ghosh, Advocate

For the Respondent Shri Rajendra Prasad, JCIT

Date of Hearing : 28.01.2015 Date of Pronouncement : 28.01.2015.

ORDER

Per Shri N.K.Saini, AM

This appeal by the assessee is directed against the order dated 26.12.2011 of ld. C.I.T-(A)-XIX, Kolkata and pertains to A.Yr.2006-07.

2. In this appeal the assessee has raised as many as seven grounds but the main ground vide ground no.1 relates to the completion of the hearing exparte without giving reasonable time and opportunity. The said ground reads as under :-

"1.That the Ld. Commissioner of Income Tax (Appeals) [in short hereinafter referred to as Ld.CIT(A) was absolutely wrong in completing the hearing ex-parte without allowing reasonable time & opportunity to the Petitioner. Thus there has been gross violation of natural justice and for this ground alone the order is liable to be set aside."

3. The facts of the case in brief are that the assessee filed the return of income on 29.11.2006 showing total income of Rs.1,01,85,354/- which was processed u/s 143(1) of the I.T.Act, 1961 (hereinafter referred to as the 'Act') on 19.11.2007. Later on the case was selected for scrutiny and assessment was framed at an income of Rs.1,82,79,650/- by making various disallowances and additions.

2 ITA No.999/Kol/2012 Dream Bake Pvt.Ltd.

A.Yr.2006-07

3.1. Being aggrieved the assessee carried the matter to the ld.CIT(A), who decided the appeal of the assesse ex parte by observing as under :

"Date of hearing : Different dates Present for the Appellant : None Present for the Department : None"

3.2. In the body of the order the ld.CIT(A) had also mentioned as under :-

"The appeal has been filed against the Order dated 31-12-2008 passed by the Dy. Commissioner of Income Tax, Circle-10, Kolkata u/s 143(3) of the I.T.Act, for A.Y. 2006-07. A notice of hearing u/s 250 of the I.T.Act dt. 19-10-2011was issued to the assesee company fixing the date of hearing on 15-11-2011. The said notice was returned unserved with the remark "left". Another notice dt.22-11-2011 was issued fixing the date of hearing on 09-12-2011. However, the said notice was also returned unserved with the same remark. Both the above mentioned notices were issued on the address provided on Form No.35. On verification of records it is observed that the assessee company had written a letter for adjournment in response to earlier notices. On the said letter there was an address of registered office of the assessee company. In order to provide one more opportunity, a notice dt. 09-12-2011 was issued on the address of registered office of the company fixing the date of hearing on 26-12-2011. On the said date no compliance was made by the assessee company nor any adjournment petition etc was received. In view of above it appears that the appellant company is not interested in pursuing the appeal filed for A.Y.2006-07. Hence, the appeal is decided on the basis of facts and material on record.´

4. The ld. Counsel for the assessee reiterated the contents of Ground no.1 and stated that the notice of hearing was not served upon the assessee. As such no opportunity of being heard was given to the assessee. He requested that the issue may be sent back to the ld. CIT(A) to be decided after providing adequate opportunity of being heard.

5. In his rival submissions the ld. DR supported the order of the ld. CIT(A) and submitted that the assessee did not co-operate and never attended before the ld. CIT(A).

6. We have heard both the parties and carefully perused the material on record. From the above said observations of the ld. CIT(A), it is crystal clear that notice of hearing was not served upon the assesee. Even in the face of the order the ld. CIT(A) has not mentioned the address of the assessee. He simply had mentioned the name as 3 ITA No.999/Kol/2012 Dream Bake Pvt.Ltd.

A.Yr.2006-07

"Dream Bake Pvt. Ltd.". So it is not clear which were the different dates of hearing. In the present case the ld. CIT(A) himself had admitted that the notices of hearing were returned unserved. It is well settled that nobody should be condemned unheard as per the maxim "Audi Alteram Partem". We, therefore, considering the totality of the facts of the case deem it proper to remand this case back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard. The assesse is also directed to co-operate and not to seek unwarranted or unreasonable adjournments.

7. In the result the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court on 28.01.2015.

Sd/- Sd/- [ George Mathan ] [N.K.Saini] Judicial Member Accountant Member Date: 28.01.2015.

R.G.(.P.S.)

Copy of the order forwarded to:

1. Dream Bake Pvt.Ltd., 296, Kalukhan Road, Boral, 24 Parganas South, Pin :

711031

2 D.C.I.T., Circle-10, Kolkata

3. CIT- (A)- XIX, Kolkata 4. CIT Kolkata

CIT(DR), Kolkata Benches, Kolkata.

True Copy, By order,

Asst. Registrar, ITAT, Kolkata Benches