Itat/10/2024 Ia No: Ga/1/2024 Somnath Commosales Private Limited v. Principal Commissioner Of Income Tax-3, Kolkata & Anr

OD–50 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/10/2024IA No: GA/1/2024SOMNATH COMMOSALES PRIVATE LIMITEDVS.PRINCIPAL COMMISSIONER OF INCOME TAX-3, KOLKATA & ANR. BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 1[st] May, 2024 Appearance :Mr. Avra Mazumder, Adv.…for appellant Ms. Smita Das De, Adv.Mr. Soumen Bhattacharjee, Adv.…for respondents The Court : This appeal filed by the assessee under Section 260A of theIncome Tax Act, 1961 (the Act) is directed against the order dated 20[th]September, 2023 passed by the Income Tax Appellate Tribunal, `A’ Bench,Kolkata in MA No. 55/Kol/2022, arising out of ITA No. 1294/Kol/2018, for theassessment year 2012-13. The assessee has raised the following substantial questions of law forconsideration : i)Whether the said impugned order dated 20[th] September, 2023 passed bythe Learned Tribunal is wrongful, illegal, arbitrary and bad in law ? ii) iii) Whether the Learned Tribunal was justified in law in not recalling theexparte order passed by the Learned Tribunal on 10[th] November, 2022when there was a reasonable cause for non-appearance on the date ofhearing of the appeal ? Whether on the facts and in the circumstances of the case, the LearnedTribunal was justified in dismissing the miscellaneous application whenyour petitioner has sufficient cause for non-appearance on the date ofhearing of the appeal ? We have heard Mr. Avra Mazumder, learned standing Counsel appearingfor the appellant and Ms. Smita Das De, learned standing Counsel for therespondents/assessee. When the matter came up for hearing on 23[rd] February, 2024, we tooknote of the conduct of the assessee who is not diligent in prosecuting the matterand had not appeared before the Assessing Officer despite notice and alsoremained exparte in the other proceedings. However, considering the fact thatthe matter is an appeal under Section 260A of the Act, we directed theappellant/assessee to pay cost to the learned standing Counsel for theappellant. This direction has been complied with. By order dated 11[th] March,2024, we observed that the Court will examine as to whether any substantialquestion of law arises for consideration or as to what orders are to be passed inthe instant case. The impugned order before us is an order passed in the miscellaneousapplication filed by the assessee requesting/pleading for one more opportunitybefore the learned Tribunal to contest the matter on merits. This was rejected bythe Tribunal noting the conduct of the assessee. Aggrieved by the order passedby the CIT(A), the assessee had preferred appeal before the Tribunal which isregistered in the year 2018 and the appeal was taken up for disposal inSeptember, 2022 and none appeared for the assessee and the Tribunalproceeded to decide the matter against the assessee. The assessee had preferredan appeal before the Commissioner of Income Tax (Appeals) –18, Kolkata [CIT(A)]challenging the assessment order dated 12[th] March, 2015 passed under Section144 of the Act. The assessee did not attend the hearing and the appeal wasdismissed. Even before the Assessing Officer the assessee did not cooperate inthe proceedings. There are certain reasons which have been set out by theassessee which appear to be not wholly false nor there is any material to showthat the assessee has willfully not proceeded to appear before the Appellateauthority or before the Tribunal. In any event, what is required to be consideredis whether appropriate tax has been computed and levied upon execution of thefactual position. Therefore, we are of the view that the matter can be remanded for freshconsideration to the Assessing Officer so that the assessee would be able toplace materials before the Assessing Officer to substantiate their case. However,it is made clear that this is the final opportunity and no further indulgencewould be granted to the assessee. The assessee is required to appear before the Therefore, we are of the view that the matter can be remanded for freshconsideration to the Assessing Officer so that the assessee would be able toplace materials before the Assessing Officer to substantiate their case. However,it is made clear that this is the final opportunity and no further indulgencewould be granted to the assessee. The assessee is required to appear before the Assessing Officer on the date fixed, submit documents and details called for andcooperate in the assessment proceedings. For the above reasons, the appeal is allowed and the impugned order is setaside and the matter is remanded to the Assessing Officer with theaforementioned direction. The stay application IA No: GA/1/2024 is also allowed. (T.S. SIVAGNANAM)CHIEF JUSTICECHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) SNAR(CR)