Sh. Parkash Chand, New Delhi V. ACIT, New Delhi

CO 2/DEL/2013

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3218 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 14-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SMT BEENA PILLAI, JUDICIAL MEMBER ITA NO.2764/DEL/2011 ASSESSMENT YEAR: 2007-08 ACIT, CIRCLE-28(1), DRUM SHAPED BUILDING, IP ESTATE, NEW DELHI. VS. PARKASH CHAND, 2911, SHAH GANJ, AJMERI GATE, NEW DELHI. PAN: AAEPG6234E CO NO.02/DEL/2013 (ITA NO.2764/DEL/2011) ASSESSMENT YEAR: 2007-08 PARKASH CHAND, 2911, SHAH GANJ, AJMERI GATE, NEW DELHI. PAN: AAEPG6234E VS. ACIT, CIRCLE-28(1), DRUM SHAPED BUILDING, IP ESTATE, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VISHAL KALRA, ADVOCATE DEPARTMENT BY : SHRI ATIQ AHMAD, SR. DR DATE OF HEARING : 20.11.2017 DATE OF PRONOUNCEMENT : 21.11.2017 ITA NO.2764/DEL/2011 CO NO.02/DEL/2013 2 ORDER PER R.S. SYAL, VP: THIS APPEAL FILED BY THE REVENUE AND THE CROSS OBJ ECTION BY THE ASSESSEE ARISE OUT OF THE ORDER PASSED BY THE CIT(A ) ON 17.03.2011 IN RELATION TO THE ASSESSMENT YEAR 2007-08. THE FOLLO WING EFFECTIVE GROUND HAS BEEN RAISED BY THE REVENUE IN ITS APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, LD.CIT(A) HAS ERRED IN DIRECTING THE A.O. TO RE-VERIFY/RECONC ILE THE CONTRACT RECEIPTS AS PER TDS CERTIFICATES VIS--VIS THE NEW DOCUMENTS/SUBMISSION TO BE MADE BY THE ASSESSEE AND TO ALLOW THE CLAIM OF THE ASSESSEE IGNORING THE FOLLOWING FACTS: A. THAT THE DIRECTIONS GIVEN BY THE LD.CIT(A) AMOUNT T O SET ASIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER. B. THAT THE LD.CIT(A) DOES NOT HAVE POWERS OF SETTING ASIDE AFTER AMENDMENT IN SECTION 251 FROM 01.06.2001. C. THAT THE LD.CIT(A) HAS OVERLOOKED THE PROCEDURE OF APPEAL PRESCRIBED U/S 250(4) OF THE INCOME-TAX ACT, 1961. 2. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE LD.CIT(A) RESTORED T HE ISSUE IN QUESTION TO THE ASSESSING OFFICER WITH A DIRECTION TO RECONCILE THE ASSESSEES CLAIM. SECTION 251 DEALING WITH THE POWERS OF THE COMMISSI ONER (APPEALS) HAS, BY THE FINANCE ACT, 2001, W.E.F. 01.06.2001, OMITTE D THE PORTION BEGINNING WITH THE WORDS OR HE MAY SET ASIDE AND ENDING WITH THE ITA NO.2764/DEL/2011 CO NO.02/DEL/2013 3 WORDS ON THE BASIS OF SUCH FRESH ASSESSMENT FROM CLAUSE (A) OF SUB- SECTION (1). IN VIEW OF THIS STATUTORY AMENDMENT, NOW IT IS NO MORE PERMISSIBLE TO THE CIT(A) TO REMIT THE MATTER TO TH E ASSESSING OFFICER FOR A FRESH DETERMINATION OF THE ISSUE. HE IS SUPP OSED TO DECIDE AN ISSUE RAISED IN APPEAL BY HIMSELF. SINCE THE LD. CIT(A) HAS VIOLATED THE PRESCRIPTION OF SECTION 251(1), WE CANNOT UPHOLD TH E SAME. THE IMPUGNED ORDER IS SET ASIDE TO THIS EXTENT AND THE MATTER IS RESTORED TO HIS FILE FOR DECIDING THIS ISSUE AT HIS OWN. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD IN THIS REGARD. 3. THE FIRST GROUND OF THE ASSESSEES CROSS OBJECTI ON IS GENERAL WHICH DOES NOT REQUIRE ANY ADJUDICATION. 4. GROUND NO.2 IS AGAINST THE RESTORATION BY THE LD .CIT(A) AND NOT DELETING THE ADDITION OF RS.55,66,892/-, BEING, THE DIFFERENCE BETWEEN THE JOB WORK RECEIPTS AS PER TDS CERTIFICATES AND T HOSE SHOWN IN THE PROFIT & LOSS ACCOUNT. SINCE WE HAVE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE WHILE DEALING WITH THE DEP ARTMENTAL APPEAL, THE ITA NO.2764/DEL/2011 CO NO.02/DEL/2013 4 GROUND TAKEN BY THE ASSESSEE IN ITS CROSS OBJECTION HAS BECOME INFRUCTUOUS. 5. THE ONLY OTHER GROUND WHICH SURVIVES IN THIS CRO SS OBJECTION IS AGAINST THE CONFIRMATION OF DISALLOWANCE U/S 40(A)( IA) AMOUNTING TO RS.40,37,872/-. 6. THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSESS EE MADE A PAYMENT OF RS.40,37,872/- IN RESPECT OF JOB CHARGES WITHOUT DEDUCTION OF TAX AT SOURCE U/S 194C OF THE ACT. ON BEING CALLED UPON T O EXPLAIN AS TO WHY NO DISALLOWANCE BE MADE U/S 40(A)(IA), THE ASSESSEE DID NOT SUBMIT ANY PROPER REPLY. THE ONLY PLEA TAKEN WAS THAT HE WAS UNAWARE OF THE PROVISIONS AND WAS NOT GUIDED BY HIS COUNSEL. INVO KING THE PROVISIONS OF SECTION 40(A)(IA), THE ASSESSING OFFICER DISALLO WED RS.40.37 LAC. THE LD. CIT(A) COUNTENANCED SUCH DISALLOWANCE BY OBSERV ING THAT THE ASSESSEE DID NOT FURNISH ANY DETAILS. 7. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELE VANT MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE DID FURNISH DETAI LS BEFORE THE LD. CIT(A), A COPY OF WHICH IS AVAILABLE FROM PAGES 53 ONWARDS OF THE ITA NO.2764/DEL/2011 CO NO.02/DEL/2013 5 PAPER BOOK. SINCE SUCH DETAILS HAVE NOT BEEN EXAMI NED BY THE LD. CIT(A), WE CONSIDER IT EXPEDIENT TO SET ASIDE THE I MPUGNED ORDER ON THIS SCORE AS WELL AND REMIT THE MATTER TO HIM FOR FRESH DISPOSAL AS PER LAW, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE REV ENUE IS ALLOWED FOR STATISTICAL PURPOSE AND THE C.O. OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2017. SD/- SD/- [BEENA PILLAI] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 21 ST NOVEMBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.