M/s Allychem Securities Pvt. Ltd., Chandigarh V. ITO, W-4(4), Chandigarh

ITA 1054/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7599 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 08-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay; Set aside
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJ AY GARG, JUDICIAL MEMBER ./ ITA NO. 1054/CHD/2018 ! / ASSESSMENT YEAR : 2012-13 M/S ALLYCHEM SECURITIES PVT. LTD., SCO. 114, IST FLOOR, SECTOR 47-C, CHANDIGARH VS. '# THE ITO, WARD-4 (4), CHANDIGARH $ % ./PAN NO: AAICA1223C $&/ APPELLANT ()$& /RESPONDENT *+ , - /ASSESSEE BY : SH. TEJ MOHAN SINGH, ADVOCATE , - / REVENUE BY : SH. RAJESH KUMAR, SR. DR . / , +0% /DATE OF HEARING : 23.04.2019 12! , +0% / DATE OF PRONOUNCEMENT : 24 .04.2019 / ORDER PER N.K. SAINI, VICE PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.3.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW IN DISMISSING THE APPEAL OF THE ASSESSEE IN-LIMINE FOR DELAY IN FILIN G OF APPEAL BY 53 DAYS WITHOUT AFFORDING PROPER OPPORTUNITY OF HEARING WHICH IS ARBITRARY AND UNJUSTIFIED. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION O F ITA NO. 1054-C-2018 THE ALLYCHEM SECURITES PVT LTD, CHANDIGARH 2 RS.61,07,300/- MADE ON ACCOUNT OF ALLEGED UNEXPLAINED UNSECURED LOANS APPLYING THE PROVISIONS OF SECTION 68 OF THE ACT IN UTTER DISREGARD OF THE EXPLANATIONS RENDERED WHICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 3. THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO TH E EX-PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING DUE AND PRO PER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE E-RETURN OF INCOME ON 29.9.2012 DECLARING AN INCOME OF 48,310/-. HOWEVER, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER AT A TOTAL INCOME OF 61,55,610/- BY MAKING AN ADDITION OF 61,07,000/- U/S 68 OF THE INCOME TAX ACT, 1961, ON ACCOUNT OF FRESH LOANS INTRODUCED . 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE BY OBSERVING T HAT THE APPEAL FILED BY THE ASSESSEE WAS BARRED BY LIMITATION PERIOD OF 53 DAYS AND NO APPLICATION FOR CONDONATION OF DELAY WAS FILED. NOW THE ASSESSE E IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PROPER OPPORTUNITY OF BEING HEARD WAS GIVEN BY THE LD. CIT (A). IT WAS FURTHER SUBMITTED THAT WHEN THE CASE WAS FIXED FOR HEARING ON 20.3.2017, THE ASSESSEE ASKED FOR ADJOURNMENT, HOWEVER, THE LD. CI T(A) DECIDED THE ITA NO. 1054-C-2018 THE ALLYCHEM SECURITES PVT LTD, CHANDIGARH 3 APPEAL EX-PARTE IN LIMINE AND HAD NOT ADJUDICATED T HE ISSUES ON MERIT. EVEN HE HAS NOT POINTED OUT THAT THE APPEAL FILED B Y THE ASSESSEE WAS BELATED. 7. IN HIS RIVAL SUBMISSIONS, THE LD. SR.DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE AP PEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS BARRED BY LIMITATION AND NO APPLICATION WAS MOVED FOR CONDONATION OF DELAY, THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT C ASE, IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL EX-PARTE IN LIMINE. HE SIMPLY STATED THAT NO APPLICATION WAS FILED BY THE ASSESSEE FOR CONDON ATION OF DELAY. HOWEVER, IT IS NOT CLEAR AS TO WHETHER THE LD. CIT( A) POINTED OUT TO THE ASSESSEE THAT APPEAL FILED WAS BARRED BY LIMITAT ION. IT IS ALSO NOTED THAT THE ASSESSEE ASKED FOR ADJOURNMENT OF THE CASE WHEN IT WAS FIXED FOR HEARING ON 20.3.2017. HOWEVER, THE LD. CIT(A) DID NOT ALLOW THE ADJOURNMENT AND HAD NOT CITED THE REASONS FOR THE S AME. IN OTHER WORDS, IT IS NOT CLEAR AS TO WHETHER THE REASON GIVEN FOR ADJ OURNMENT BY THE ASSESSEE WAS GENUINE OR NOT. 9. WE, THEREFORE, CONSIDERING THE TOTALITY OF FACTS DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT (A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE ITA NO. 1054-C-2018 THE ALLYCHEM SECURITES PVT LTD, CHANDIGARH 4 OPPORTUNITY TO BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJO URNMENTS. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 24.04.2019) SD/- SD/- . . ! (SANJAY GARG ) (N.K. SA INI) ' #/ JUDICIAL MEMBER %&' / VICE PRESIDENT DATED : 24.04.2019 .. 3 , (+45 65!+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. ()$& / THE RESPONDENT 3. . 7+ / CIT 4. . 7+ ( )/ THE CIT(A) 5. 58 (+9 , 0 9 , :;<= / DR, ITAT, CHANDIGARH 6. < >/ / GUARD FILE 3 . / BY ORDER, ? / ASSISTANT REGISTRAR