Anirudh Bhuwalka v. Dy. Commissioner Of Income Tax,Circle 4(1), Kolkata And Anr

ITAT/163/2022IA No.GA/1/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE ANIRUDH BHUWALKA -Versus- DY. COMMISSIONER OF INCOME TAX,CIRCLE 4(1), KOLKATA AND ANR. Appearance:Mr. Anirudhya Dutta, Adv....for the appellant. Ms. Smita Das De, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE SUPRATIM BHATTACHARYA Date : 6[th] September, 2022. The Court : We have heard Mr. Anirudhya Dutta, learnedAdvocate for the appellant and Ms. Smita Das De, learned standingcounsel for the respondent to whom we have requested to takenotice on behalf of the respondent and her appearance to beregularised by the Ministry/Department. There is delay of 24 days in filing the appeal. We haveperused the affidavit filed in support of the application and wefind sufficient cause has been shown for not being able to preferthe appeal within time. Accordingly, the application for condonation of delay (IANo.GA/1/2022) is allowed and the delay in filing the appeal iscondoned. This appeal filed by the assessee under Section 260A ofthe Income Tax Act, is directed against the order dated 31[st]January, 2022 passed by the Income Tax Appellate Tribunal, Kolkata‘SMC’ Bench, Kolkata (the Tribunal) in ITA No.513/Kol/2021 and ITANo.514/Kol/2021 for the assessment years 2018-19 and 2019-20.We have heard Mr. Anirudhya Dutta, learned Advocate forthe appellant and Ms. Smita Das De, learned standing counsel forthe respondent. The assessee has raised the following substantial questions of law for consideration: “i)Whether the Tribunal was justified in law indisregarding the application made by the Appellantfor adjournment of the hearing on January 31, 2022and in proceeding with an ex parte hearing withoutgiving the appellant an opportunity of being heardwhile passing the impugned order against themandate of section 254 of the Income Tax Act, 1961?ii)Whether the Tribunal was justified in ignoring theprovisions of section 205 of the Income Tax Act,1961 which provides for a bar against a directdemand on the Assessee and further erred in upholding the order passed by the CIT(A) underSection 250 of the Income Tax Act, 1961?iii)Whether the Tribunal erred in passing an unreasonedorder which has prejudiced the Appellant here inthe facts and circumstances of the instant matter,without considering the grounds as taken in theappeal by the appellant? iv) Whether the Tribunal has erred in upholding theorder of the CIT(A) for the Assessment Years 2018-19 and 2019-20 whereby the said authority hadremanded the matter to the Assessing Officerwithout considering that the Appellant could not beheld liable for failure of M/s. AMW Motors Limited,if such entity failed to deposit the deducted sumto the Government exchequer and consequently failedto issue a certificate in favour of the Appellantas mandated by the Income Tax Act, 1961? We have perused the order passed by the tribunal and we findthat the assessee did not appear before the tribunal and thetribunal records that a request for adjournment was made. However,the tribunal was not convinced with the reasons cited for seekingan adjournment. Before us the learned advocate appearing for theapplicant would submit that the appellant had prayed foradjournment of the hearing fixed by the tribunal on January 31, We have perused the order passed by the tribunal and we findthat the assessee did not appear before the tribunal and thetribunal records that a request for adjournment was made. However,the tribunal was not convinced with the reasons cited for seekingan adjournment. Before us the learned advocate appearing for theapplicant would submit that the appellant had prayed foradjournment of the hearing fixed by the tribunal on January 31, 2022 because of ill health of the appellant and this aspect oughtto have been considered by the tribunal and a more liberalapproach could have been adopted. Further, the learned advocateappearing for the appellant sought to canvas various grounds onthe merits of the matter. In our considered view, the appeal beingof the year 2021 and it appears that on the first hearing date,that is, 31[st] January, 2022 adjournment was sought for on theground of ill health of the appellant. However, there is nomedical certificate produced before us to justify such a stand.Nevertheless, we are of the view that since the alternative remedyavailable to the assessee before the learned tribunal is aneffective and efficacious remedy more particularly because thelearned tribunal is the last fact finding forum in the hierarchyof the authorities, therefore, we are of the view that one moreopportunity should be granted to the assessee to contest theappeal on merits. For all the above reasons, the appeal (ITAT 163/2022) isallowed and the order passed by the learned tribunal is set asideand the appeals are restored to the file of the learned tribunalto be heard and decided on merits in accordance with law. Theappellant is directed to appear before the tribunal on the datefixed by the tribunal without seeking unnecessary adjournment andshall proceed to co-operate with the tribunal for expeditious disposal of the appeal. Consquently, the substantial questions oflaw are left open. (T.S. SIVAGNANAM, J.) (SUPRATIM BHATTACHARYA, J.) S.Das/As.