Income Tax Appellate Tribunal - Kolkata
S. N. Cold Storage (P) Ltd., Hooghly vs Jcit, R-2, Hooghly, Hooghly on 10 November, 2017
आयकर अपील य अधीकरण, यायपीठ - "D" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "D" KOLKATA
Before Shri Waseem Ahmed, Accountant Member and
Shri S.S.Viswanethra Ravi, Judicial Member
ITA No.622/Kol/2016
Assessment Year:2010-11
S.N.Cold Storage (P) Ltd. बनाम JCIT, Range-2,
Hamir Gachi, BrahmanPara, Hooghly, Grand Trank
/
Chandannagar, Road, Chinsurah,
V/s.
Hooghly-712405 Hooghly, West Bengal-
[PAN No.AAECS 2700 A] 712 102
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Subash Agarwal, Advocate
यथ क ओर से/By Respondent Shri Arindam Bhatttacherjee, Addl. CIT-DR
सुनवाई क तार ख/Date of Hearing 01-11-2017
घोषणा क तार ख/Date of Pronouncement 10-11-2017
आदे श /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-6, Kolkata dated 19.01.2016. Assessment was framed by JCIT, Range-2, Hooghly u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') vide his order dated 28.03.2013 for assessment year 2010-11. Subash Agarwaal, Advocate, appeared on behalf of assessee and Shri Arindm Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue.
2. The first issue raised by assessee is that Ld CIT(A) erred in confirming the order of Assessing Officer without providing reasonable opportunity of being heard.
3. At the outset it was observed that the registry of ITAT has pointed out the defect in the appeal filed by the assessee on the ground that the appeal has been filed without making the payment of requisite amount. As per the registry there was short ITA No.622/Kol/2016 A.Y. 2010-11 S.N.Cold Storage (P) Ltd. Vs. JCIT, Rn-2, Hlg. Page 2 payment of Rs. 6249.00 only. The assessee was liable to pay an amount of 1% of the disputed amount i.e. 6749.00 being 1% of 6,74,934.00 as per the provisions of Section 253(6)(c) of the Act whereas the assessee has paid the fee Rs. 500 only. Thus there was short payment of Rs. 6249.00 only.
4. In this regard the Ld AR submitted that in the instant case the disputed amount represents the loss for Rs. 6,74,934.00 only. Thus as per the Ld AR, the assessee is liable to pay fee of Rs.500 in case the disputed amount represents the loss in terms of the provisions of section 253(6)(d) of the Act. In this connection the Ld AR relied on the judgment of Hon'ble Bombay High Court in the case of Gilbs Computer Limited v. ITAT, ACIT, Union of India- Writ Petition number 1021 of 2009. The relevant extract of the order is reproduced below: -
"... ... considering the entire scheme of the Act and the history of the purpose of the amendment, we have no difficulty in holding that either clause (a) or (d) of sub- section (6) of section 253 would be attracted but considering the earlier discussion regarding that loss would also be covered by the expression "total income", we would hold that in such a case it would be covered by clause (d). If that be so, the appellants were right in paying court fee of Rs.500/-. In view of that, order dated 21st January 2009"is set aside and appeal is restored to file as properly stamped."
After hearing the ld. AR we not that it is undisputed fact that the disputed amount in the instant case represents the loss. Thus respectfully following the judgment of Hon'ble Bombay High Court in the case of Gilbs Computer Limited (supra) we hold that the assessee was liable to pay a sum of Rs. 500 as fees along with its appeal. Thus in our considered view there is no defect in the appeal as far as the issue of fees is concern.
Now coming to the facts of the case :
5. At the outset, it was observed that the assessee before us in the grounds of appeal has pleaded that the impugned order has been passed without giving opportunity of being heard.
6. The ld. AR before us submitted that the adjournment petition was filed before the ld. CIT(A) vide dated 14.01.2016 and the Ld. CIT(A) accepted the same and adjourned the matter for hearing on 02.02.2016. However the Ld. CIT(A) passed the order dated 19.01.2016 without considering the adjournment petition filed by the ITA No.622/Kol/2016 A.Y. 2010-11 S.N.Cold Storage (P) Ltd. Vs. JCIT, Rn-2, Hlg. Page 3 assessee inadvertently. Thus, the AR prayed to restore the matter to the file of Ld. CIT(A).
On the other hand the ld. DR raised no objection if the matter is restored back to the Ld. CIT(A) for fresh adjudication.
7. At the outset we find that the Ld. CIT(A) affirmed the action of Assessing Officer without hearing the assessee in person despite the fact the adjournment application was filed by the assessee as demonstrated by the ld. AR. In this view of the matter, we are inclined to remit the matter back to the file of Ld. CIT(A) with the direction to decide the issue raised by assessee afresh after giving reasonable opportunity of being heard to assessee. It is needless to say that the assessee should co-operate in the appellate proceeding. Hence, this ground of assessee's appeal stands allowed for statistical purpose.
8. In the result, for statistical purpose the appeal of assessee is treated as allowed.
Order pronounced in open court on 10/11/2017
Sd/- Sd/-
( या%यक सद'य) (लेखा सद'य)
(S.S.Viswanethra Ravi) (Waseem Ahmed)
Judicial Member Accountant Member
*Dkp, Sr.P.S
)दनांकः- 10/11/2017 कोलकाता / Kolkata
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-S.N.Cold Storage (P) Ltd.Haamir Gachi, Brhmanpara, Chandannagar, Hooghly-712405
2. यथ /Respondent-JCIT, Range-2, Grant Trunk Rd. Chinsurah, Hooghly-712102
3. संब,ं धत आयकर आय-
ु त / Concerned CIT
4. आयकर आय-
ु त- अपील / CIT (A)
5. .वभागीय %त%न,ध, आयकर अपील य अ,धकरण कोलकाता / DR, ITAT, Kolkata
6. गाड2 फाइल / Guard file.
By order/आदे श से, /True Copy/ Sr. Private Secretary Head of Office/DDO आयकर अपील य अ,धकरण, कोलकाता