Sh. Vaneet Sood, Panchkula V. DCIT, Panchkula

ITA 1110/CHANDI/2011

• Counselvise Citation: 111021514 RSA 2011
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KHEMWAL
• Keywords: Revision of order; Opportunity of being heard
• Section: 143(3); 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: B BENCH: CH ANDIGARH BEFORE SHRI D K SRIVASTAVA, AM AND MS. SUSHMA CHOWL A, JM ITAS NO. 1110-1111/CHANDI/2011 ASSESSMENT YEAR: 2005-06 AND 2008-09 VANEET SOOD, V D.C.I.T. PANCHKULA SCO 85, SECTOR 5, PANCHKULA PAN: APXPS 2727 APPELLANT BY: SHRI VINEET KRISHAN, ADVOCATE RESPONDENT BY: SHRI S.S. KHEMWAL, DR DATE OF HEARING: 03.01.2012 DATE OF PRONOUNCEMENT: 12.01.2012 ORDER D K SRIVASTAVA: BOTH THE APPEALS FILED BY THE ASSES SEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE LD. CIT(A) ON 6.9.20 11 FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL, NAMELY, AY 2005-06 AND 2008-09. 2. IN ITA NO.1110/CHD/2011, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1 THAT THE ORDER PASSED U/S 250(6) BY THE LD. CIT( A), PANCHKULA DATED 6.9.2011 IS CONTRARY TO LAW AND FACTS OF THE CASE. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF ETH CASE THE LD. CIT(A) PANCHKULA GRAVELY ERRED IN PASSING EXPARTE ORDER WH EN THE LD. COUNSEL HAD DULY APPEARED. 3. THAT THE LD. CIT(A) GRAVELLY ERRED IN DISMISSING THE APPEAL OF NON- PROSECUTION, WHEN THE APPELLANT HAD POINTED OUT DUR ING THE COURSE OF APPELLATE PROCEEDINGS THAT THE APPEAL FIELD FOR THE AY 2006-07 AND AY 2007-08 HAVE BEEN ACCEPTED BY THE LD. CIT(A), PANCH KULA AND THE SAME ARE PENDING BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, CHANDIGIARH AND THE PROCEEDINGS MAY KINDLY BE KEPT IN ABEYANCE. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GRAVELLY ERRED IN NOT GIVING THE DECISION ON MERITS . 5. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WA S GRANTED. VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 2 6. THAT THE LD. CIT(A) GRAVELLY ERRED IN UPHOLDING CHARGING OF INTEREST U/S 234B, 234A AND 234C OF THE INCOME-TAX ACT, 1961 WHICH IN ANY CASE IS EXCESSIVE. 7. ANY OTHER GROUND THAT MAY BE TAKEN AT LATER STAG E WITH THE PERMISSION OF THE HON'BLE BENCH. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME ON 23.5.2007 RETURNING TAXABLE INCOME AT RS. 34,10,317/- AFTER CLAIMING DEDUCTION U/S 80IB. THE RETURN WAS TAKEN UP FOR SCR UTINY PURSUANT TO WHICH ASSESSMENT ORDER U/S 143(3) OF THE INCOME-TAX ACT W AS PASSED BY THE AO ON 23.5.2010. THERE WAS NO DISCUSSION ABOUT THE ADMISS IBILITY OF DEDUCTION U/S 80IB IN THE SAID ASSESSMENT ORDER WITH THE RESULT THAT T HE DEDUCTION CLAIMED BY THE ASSESSEE IN HIS RETURN OF INCOME STOOD ALLOWED WITH OUT ANY EXAMINATION AS TO ITS ADMISSIBILITY. IN EXERCISE OF HIS JURISDICTION U/S 263, THE LD. COMMISSIONER CALLED FOR THE RECORDS AND EXAMINED THEM. BY HIS ORDER DAT ED 14.12.2009, THE LD. COMMISSIONER CANCELLED THE SAID ASSESSMENT ORDER PA SSED BY THE AO ON THE GROUND THAT IT WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE AO WAS DIRECTED BY THE LD. COMMISSIONER TO PASS A F RESH ASSESSMENT ORDER IN CONFORMITY WITH LAW. THE ASSESSEE CHALLENGED THE OR DER PASSED BY THE LD. COMMISSIONER U/S 263 ON 14.12.2009 BEFORE THIS TRIB UNAL. DURING THE COURSE OF HEARING OF THE SAID APPEAL, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF HEARING BY THE COMMISSIONER BEFORE PASSING THE ORDER U/S 263 ON 14 .12.2009 AND THEREFORE THE ORDER PASSED BY THE COMMISSIONER SHOULD BE SET ASID E. BY ORDER DATED 28.11.2011 (ITA NO. 114/CHD/2010) PASSED BY THIS TRIBUNAL, THE ORDER PASSED BY THE COMMISSIONER U/S 263 WAS SET ASIDE AND THE MATTER W AS RESTORED TO HIM FOR FRESH DECISION AFTER GIVING REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE. 4. IN THE MEANTIME, THE AO HAS PASSED FRESH ASSESSM ENT ORDER DATED 28.12.2010 PURSUANT TO THE DIRECTIONS GIVEN BY THE COMMISSIONER IN HIS ORDER PASSED U/S 263 ON 14.12.2009, WHICH, AS MENTIONED E ARLIER, WAS CHALLENGED BY VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 3 THE ASSESSEE BEFORE THE LD. CIT(A). THE APPEAL FILE D BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER DATED 28.12.2010 WAS DISPOSED OFF BY THE LD. CIT(A) BY HIS ORDER DATED 6.9.2011. PERUSAL OF THE ORDER PASSED B Y THE LD. CIT(A) SHOWS THAT THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) W ITH THE RESULT THAT THE LD. CIT(A) CONFIRMED THE ORDER PASSED BY THE AO. 5. THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUN AL AGAINST THE ORDER PASSED BY THE LD. CIT(A) ON 6.9.2011. IN SUPPORT OF APPEAL , IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORDER PASSED BY T HE COMMISSIONER U/S 263 ON 14.12.2009 HAS ALREADY BEEN SET ASIDE BY THIS TRIBU NAL AND THEREFORE THE ASSESSMENT ORDER PASSED BY THE AO IN PURSUANCE THER EOF ALSO NEEDS TO BE SET ASIDE. 6. THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE COULD NOT BE REBUTTED BY THE LD. DR. 7. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSMENT O RDER UNDER CHALLENGE IN THE PRESENT APPEAL HAS BEEN PASSED IN PURSUANCE OF THE DIRECTIONS GIVEN BY THE COMMISSIONER IN THE ORDER PASSED BY HIM U/S 263 ON 14.12.2009 WHICH HAS ALREADY BEEN SET ASIDE BY THIS TRIBUNAL. IN THIS VI EW OF THE MATTER, THE ASSESSMENT ORDER PASSED BY THE AO PURSUANT TO THE DIRECTIONS G IVEN BY THE COMMISSIONER IN THE AFORESAID ORDER NEEDS TO BE SET ASIDE. WE ORDER ACCORDINGLY. THE AO MAY PASS A FRESH ASSESSMENT ORDER IF HE IS DIRECTED TO DO SO BY THE COMMISSIONER IN PURSUANCE OF THE ORDER WHICH HE IS NOW REQUIRED TO PASS IN TERMS OF THE ORDER DATED 28.11.2011 PASSED BY THIS TRIBUNAL IN THE APP EAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE COMMISSIONER U/S 26 3 FOR AY 2005-06. APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STA TISTICAL PURPOSES. 9. IN ITA NO. 1111/CHD/2011, THE ASSESSEE HAS TAKE N THE FOLLOWING GROUNDS OF APPEAL: 1 THAT THE ORDER PASSED U/S 250(6) BY THE LD. CIT( A), PANCHKULA DATE4D 6.9.2011 IS CONTRARY TO LAW AND FACTS OF THE CASE. VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 4 2. THAT IN THE FACTS AND CIRCUMSTANCES OF ETH CASE THE LD. CIT(A) PANCHKULA GRAVELY ERRED IN PASSING EXPARTE ORDER WH EN THE LD. COUNSEL HAD DULY APPEARED. 3. THAT THE LD. CIT(A) GRAVELY ERRED IN DISMISSING THE APPEAL OF NON- PROSECUTION, WHEN THE APPELLANT HAD POINTED OUT DUR ING THE COURSE OF APPELLATE PROCEEDINGS THAT THE APPEAL FIELD FOR THE AY 2006-07 AND AY 2007-08 HAVE BEEN ACCEPTED BY THE LD. CIT(A), PANCH KULA AND THE SAME ARE PENDING BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, CHANDIGIARH AND THE PROCEEDINGS MAY KINDLY BE KEPT IN ABEYANCE. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GRAVELLY ERRED IN NOT GIVING THE DECISION ON MERITS . 5. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WA S GRANTED. 6. THAT THE LD. CIT(A) GRAVELLY ERRED IN UPHOLDING CHARGING OF INTEREST U/S 234B, 234A AND 234C OF THE INCOME-TAX ACT, 1961 WHICH IN ANY CASE IS EXCESSIVE. 7. ANY OTHER GROUND THAT MAY BE TAKEN AT LATER STAG E WITH THE PERMISSION OF THE HON'BLE BENCH. 10. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30.9.2008 RETURNING TOTAL INCOME AT RS.26 ,40,540/- AS AGAINST WHICH ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 3 1.12.2010 ASSESSING THE TOTAL INCOME AT RS.4,07,92,200/-. WHILE COMPLETING THE ASSESSMENT THE AO HAS REJECTED CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80 IB OF THE ACT. THE AO HAS ALSO MADE OTHER ADDITIONS/DISALLOWANCES. AGGRIEVED BY TH E ORDER PASSED BY THE AO THE ASSESSEE FIELD APPEAL BEFORE THE LD. CIT(A), WHICH HAS BEEN DISMISSED BY HIM ON ACCOUNT OF DEFAULT ON THE PART OF THE ASSESSEE IN E NTERING APPEARANCE BEFORE HIM ON THE DATE(S) FIXED FOR HEARING. VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 5 11. AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT(A) , THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. IN SUPPORT OF APPEAL, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT ONE OF THE ISSUES IN THE PRESENT APPEAL RELATES TO ADMISSIBILITY OF DEDUCTION U/S 80IB, WHICH, ACCORDI NG TO HIM, CANNOT BE DECIDED UNLESS THE CLAIM OF DEDUCTION U/S 80IB IS DECIDED I N THE FIRST YEAR OF CLAIM, I.E., AY 2005-06. HE SUBMITTED THAT THE ORDER PASSED BY THE LD. CIT(A) SHOULD THEREFORE BE SET ASIDE AND THE MATTER RESTORED TO HIS FILE FO R DISPOSAL IN THE LIGHT OF DECISION WITH REGARD TO THE ADMISSIBILITY OF DEDUCTION U/S 8 0IB IN AY 2005-06. 12. THE LD. DR COULD NOT REBUT THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 13. WE HAVE HEARD BOTH THE PARTIES. THE COMMISSIONE R (APPEALS) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR WANT OF PROSECUTION BY THE ASSESSEE. HOWEVER, SUB-SECTION (6) OF SECTION 250 M ANDATES THAT THE ORDER OF THE COMMISSIONER (APPEALS) SHALL BE IN WRITING AND SHAL L STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. PERUSAL OF THE ORDER PASSED BY THE LD. CIT(A) SHOWS THAT THE P RESCRIPTION OF SEC 250(6) HAS NOT BEEN COMPLIED WITH BY HIM. THE COMMISSIONER IND EED HAS JURISDICTION TO PASS EX-PARTE ORDER IN APPROPRIATE CASES BUT THAT JURISD ICTION HAS TO BE EXERCISED IN CONFORMITY WITH THE PROVISIONS OF SUB-SECTION (6) O F SECTION 250. IT WAS MANDATORY ON HIS PART TO DISPOSE OFF THE APPEAL BY PASSING A REASONED ORDER. BESIDES, THE ADMISSIBILITY OF THE CLAIM FOR DEDUCTION U/S 80IB I N THE YEAR UNDER APPEAL CANNOT BE ADJUDICATED UPON UNLESS THE ISSUE IS CONSIDERED AND DECIDED BY THE DEPARTMENT IN THE FIRST YEAR OF CLAIM, I.E., AY 200 5-06. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW AFTE R GIVING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. . ORDER PRONOUNCED ON 12.01.2012 SD/- SD/- VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 6 (SUSHMA CHOWLA) (D K SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEM BER CHANDIGARH: 12 .01.2012 SURESH COPY TO: 1. THE APPELLANT, VANEET SOOD 2. THE RESPONDENT, D.C.I.T 3. THE CIT(A), PANCHKULA 4. THE LD. CIT, PANCHKULA 5. THE D.R, INCOME-TAX DEPARTMENT, CHANDIGARH TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH VANEET SOOD V. D.C.I.T. ITAS NO. 1110 AND 1111/CHD/2011 7