M/S SUNIL RE-ROLLERS & STEELS PVT. LTD., RAIPUR (CG) V. ACIT CIRCLE-1(2), RAIPUR (CG)

ITA 11/BIL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2417 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: R B DOSHI
• Keywords: Principle of natural justice
• Section: 2

Judgement Text

, RA IPUR IN THE INCOME TA X A PPELLA TE TRIBUNA L, RA IPUR BEFORE S/SHRI MUKUL SHRAW AT ( JM) SHAMIM YAH Y A (AM) , , ./ I.T.A. NO. 11/BLPR/2013 ( / ASSESSMENT YEAR : 2003 - 04 ) SUNIL RE - ROLLERS & STEELS PVT LTD., C/O M/S. R.S.KHEMKA & CO., ADVOCATES & TAX CONSULTANTS, 1 ST FLOOR, S.N.TRUST BUILDING, CIVIL LINES, RAIPUR. / VS. ACIT, CIRCLE - 1(2), C.R. BUILDING, CIVIL LINES, RAIPUR ./ ./ PAN/GIR NO. : AADCS 5044 E ( / AP PELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI R.B,. DOSHI / RESPONDENT BY : SHRI D.K.JAIN / DATE OF HEARING : 15 - 02 - 2016 / DATE OF PRONOUNCEMENT : - 02 - 2016 / O R D E R PER MUKUL SHRAWAT, JM THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM AN ORDER OF THE LD CIT(A), RAIPUR DATED 11.10.201, FOR THE ASSESSMENT YEAR 2003 - 04. T HE GROUNDS RAISED ARE AS UNDER: 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE ORDER DATED 11.10.2011 PASSED BY THE LD CIT(A), IT IS AB - ANITIO - VOID IN THE ABSENCE OF PROPER SERVICE OF NOTICE AS REQUIR ED U/S.250(1). 2 I.T.A. NO.11/BLPR/2013 ASSESSMENT YEAR :2003 - 04 2. ALTERNATIVELY, ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) GROSSLY ERRED IN NOT ADJUDICATING THE DISPUTED ADDITION OF RS.7,64,165/ - ON MERITS THUS THE IMPUGNED ORDER SUFFERS FROM LEGAL INFIRMITY HENCE DESERVES TO BE QUA SHED. 3. ALTERNATIVELY, ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE IMPUGNED ADDITION OF RS.7,64,165/ - ON ACCOUNT OF ALLEGED EXCESS STOCK OF FINISHED GOODS FOUND AT THE TIME OF SURVEY U/S.133A DESERVES TO BE DELETED. 2. AT THE OUTSET, WE HAVE BEEN INFO RMED THAT IN THE PAST , FOR ASSESSMENT YEAR 2003 - 04, I.E. THE ASSESSMENT YEAR UNDER CONSIDERATION, AN ORDER WAS PASSED BY ITAT, BILASPUR (CAMP AT RAIPUR) IN ASSESSEE S OWN CASE BEARING ITA NO. 322/NAG/2007 ORDER DATED 28.11.2008. H OWE VER, THE MATTER WAS RE STORED BACK TO THE FILE OF THE LD CIT(A) WITH CERTAIN DIRECTION. A CCORDINGLY, THE CASE WAS FIXED FOR HEARING. WE H AVE BEEN INFORMED THAT UNFORTUNATELY, THE APPEAL COULD NOT BE REPRESENTED BY THE ASSESSEE AND THE LD CIT(A) HAS SIMPLY FOLLOWED THE ORDER OF HIS PREDECESSOR WITHOUT APPRECIATING THE CORRECT FACTUAL POSITION. L D A.R. SHRI R.B.DOSHI, HAS GIVEN AN UNDERTAKING IN THE COURT BEFORE US THAT IF A N OPPORTUNITY IS GRANTED, THEN THE CASE SHALL BE PROPERLY REPRESENTED BEFORE THE LD CIT(A) WITHOUT ANY F AIL OR ADJOURNMENT. 3. FROM THE SIDE OF THE REVENUE, SHRI D.K.JAIN, LD D.R. HAS OPPOSED THE ARGUMENT OF LD A.R. 4. ONE MORE POINT HAS ALSO BEEN BROUGHT TO OUR NOTICE THAT THIS APPEAL WAS BELATEDLY FILED BEFORE THE TRIBUNAL. T HIS APPEAL IS LATE BY 384 DAYS. I N THIS 3 I.T.A. NO.11/BLPR/2013 ASSESSMENT YEAR :2003 - 04 REGARD, LD A.R. HAS PLACED CERTAIN INFORMATION ON RECORD TO ESTABLISH THAT ON NUMBER OF OCCASION S, THE ASSESSEE HAS DEMANDED FOR THE COPY OF THE ORDER PASSED BY LD CIT(A) AND EVEN AN APPLICATION UNDER RTI ACT WAS MOVED BUT THE ORDER WAS NOT COMMUNICATED TO THE ASSESSEE. A CCORDING TO LD A.R. AS SOON AS THE ORDER WAS RECEIVED, THE APPEAL WAS FILED BEFORE THE TRIBUNAL. C ONSIDERING THE REASONS GIVEN IN THE CONDONATION PETITION, WE HEREBY CONDONE THE DELAY AND ADMIT THIS APPEAL FOR ADJUDICATION . 5. WE H AVE PERUSED THE ORDER OF LD CIT(A) AND THE ADMITTED FACTUAL POSITION WAS THAT NO ONE HAD APPEARED FR OM THE SIDE OF THE APPELLANT. W E HAVE ALSO PERUSED THE ORDER OF THE RESPECTIVE CO - ORDINATE BENCH PRONOUNCED IN ASSESSEES OWN CASE VIDE ORDER DAT ED 28.11.2008 (SUPRA) FOR THE REASON THA T THE ASSESSEE HAS CONTESTED THAT THE ENTIRE VALUATION OF STOCK WAS MERELY ON AN ESTIMATED BASIS AND ACTUAL WEIGHTS WERE NOT CONSIDERED. C ONSIDERING THIS PLEA AS AN IMPORTANT ASPECT FOR DETERMINATION OF THE VALUATIO N OF STOCK, THE TRIBUNAL HAD THOUGHT IT JUSTIFIABLE TO RESTORE THE ISSUE BACK TO THE FILE OF THE LD CIT(A) . A D ECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. TOLLARAM HOSSOMAL, 298 ITR 22 (MP) HAS ALSO BEEN REFERRED. T HE PRESENT ORD ER OF THE LD CIT(A) HAS SIMPLY MENTIONED THE REASONS GIVEN BY HIS PREDECESSOR AND THEREUPON ON THE SAME LINES, THE ADDITION WAS AGAIN CONFIRMED. 5.1 CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE ESPECIALLY WHEN THE ASSESSEE HAS TRIED TO DEMONSTRATE BEFORE US THAT THE VARIATION IS EXPLAINABLE, WE CONSIDER IT 4 I.T.A. NO.11/BLPR/2013 ASSESSMENT YEAR :2003 - 04 JUSTIFIABLE TO GIVE ONE MORE OPPORTUNITY TO THIS APPELLANT. W E HAVE ALSO TAKEN NOTE OF THE UNDERTAKING GIVEN BY LD A.R. THAT THIS APPEAL SHALL BE DECIDED AT AN EARLY DATE WITHOUT TAKING FRIVOLOUS ADJOUR NMENTS. W E, THEREFORE, DIRECT THE ASSESSEE AND HIS REPRESENTATIVE TO BE PRESENT BEFORE THE LD CIT(A) WITHIN 30 DAYS ON RECEIPT O F THE ORDER OF THE TRIBUNAL WITH NECESSARY EVIDENCE SO THAT THIS APPEAL CAN BE DECIDED AT AN EARLY DATE. WE A LSO DIRECT THE A SSESSEE TO APPEAR BEFORE THE DL CIT(A) SUO - MOTO WITHOUT WAITING FOR ANY NOTICE OF HEARING. H OWEVER, LD CIT(A) IS AT LIBERTY TO PROCEED WITH THE MATTER AS PER LAW. S INCE, WE ARE RESTORING THIS ISSUE FOR DENOVO CONSIDERATION BY LD CIT(A) AFTER CONSIDERING THE FACT THAT AN EXPARTE ORDER WAS PASSED AND THAT THE DIRECTION S OF THE TRIBUNAL HAVE ALSO NOT BEEN TAKEN INTO ACCOUNT, THEREFORE, PRESENTLY THE GROUNDS RAISED BY THE ASSESSEE MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 /02/2016 . S D/ - SD/ - ( , ) ( , ) SHAMIM Y AHY A , ACCOUNT ANT MEMBER MUKUL SHRA WA T , JUDICIAL M EM B ER RAIPUR , DATED 17 / 02 /20 1 6 . . ./ PARIDA , SR. PS 5 I.T.A. NO.11/BLPR/2013 ASSESSMENT YEAR :2003 - 04 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : SUNIL RE - ROLLERS & STEELS PVT LTD., C/O M/S. R.S.KHEMKA & CO., ADVOCATES & TAX CONSULTANTS, 1 ST FLOOR, S.N.TRUST BUILDING, CIVIL LINES, RAIPUR. 2. THE RESPONDENT: ACIT, CIRCLE - 1(2), C.R. BUILDING, CIVIL LINS, RAIPUR 3. ( ) / THE CIT(A) - RAIPUR 4. / CIT , RAIPUR 5. , , / DR, ITAT, RAIPUR 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SR. PS, ITAT, CAMP: RAIPUR