Proceeding Upon Intimation Passed U/s 143(1) Without Granting Reasonable Opportunity Of Hearing To Assessee, Is Bad In Law: Kolkata ITAT
Pankaj Bajpai
17 March 2024 4:00 AM GMT
The Kolkata ITAT held the intimation passed by the Assessing Officer under section 143(1) and proceeding on such intimation to be bad in law, as the same was passed without granting any reasonable opportunity of hearing to the assessee.Relying on the decision of Income Tax Officer (Exemption) –vs- Camellia Educare Trust, the Bench of Rajesh Kumar (Accountant Member) and Anikesh...
The Kolkata ITAT held the intimation passed by the Assessing Officer under section 143(1) and proceeding on such intimation to be bad in law, as the same was passed without granting any reasonable opportunity of hearing to the assessee.
Relying on the decision of Income Tax Officer (Exemption) –vs- Camellia Educare Trust, the Bench of Rajesh Kumar (Accountant Member) and Anikesh Banerjee (Judicial Member) reiterated that “where there is no response received from the assessee then, within thirty days of the issue of such intimation, department is free to make such adjustment or disallowance”. (Para 6)
As per the brief facts of the case, the assessee while filing its return, has adjusted the loss during the year in house property amounting to Rs.87,143/-, which was set off with the long-term capital gain and the business loss of Rs.6,578/- which was also adjusted with the long-term capital gain. The AO however assessed the total income of the assessee at Rs.2,77,370/- by not allowing loss from house property to be set off against capital gains without giving any intimation to the assessee and rejected the loss from house property amounting to Rs.87,143/-.
The Bench pointed that assessee has adjusted intra-head loss with the gain of long-term capital gain during the assessment year under consideration. The assessee has claimed this loss in the return of income, which was rejected by the Assessing Officer without giving reasonable opportunity to the assessee and issued intimation under section 143(1).
The Bench referred to the decision in case of Income Tax Officer (Exemption) –vs.- Camellia Educare Trust [2023] 152 taxmann.com 304 (Kolkata-Trib.), wherein it was held that “if any response is received from the assessee then, the same should be considered before making any adjustment or disallowance. In case, where there is no response received from the assessee then, within thirty days of the issue of such intimation, department is free to make such adjustment or disallowance”.
Hence, the loss claimed by the assessee amounting to Rs.87,143/- stands allowed by the ITAT.
Counsel for Appellant/ Taxpayer: Puja Somani
Counsel for Respondent/ Revenue: P.P. Barman
Case Title: Aashirvad Villa Limited verses ITO
Case Number: I.T.A. No. 1372/KOL/2023
