Mahesh D. Ghule, Pune V. Income-tax Officer, Ward - 6 (2), Pune

ITA 1128/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6296 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 22-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH R PARDESHI
• Keywords: Depreciation; Principle of natural justice
• Section: 143(3); 142(1); 143(2); 147; 148; 2

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . / ITA NO.1128/PUN/2019 / ASSESSMENT YEAR : 2010-11 MAHESH DNYANESHWAR GHULE, FLAT NO.2101, BUILDING D, SHUBHKALYAN, NANDED CITY, NEAR LOKMAT PRESS, PUNE. PAN : AGJPG9010B. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 6(2), PUNE. . / RESPONDENT ASSESSEE BY : SHRI RAJKUMAR DOSHI. REVENUE BY : SHRI DINESH R. PARDESHI. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 4, PUNE DATED 21.05.2 019 FOR A.Y. 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN THE BU SINESS OF PROVIDING JCBS/TIPPERS/DUMPERS ON HIRE AND EARNS INCOME FROM RENT ON GODOWNS AND MACHINERY. IN THIS CASE ASSESSMENT WAS RE-OPENED / DATE OF HEARING : 12.09.2019 / DATE OF PRONOUNCEMENT: 09.10.2019 2 U/S 147 OF THE ACT BY ISSUING NOTICE U/S 148 OF THE ACT ON 31.03.2017. NOTICE U/S 143(2) AND 142(1) OF THE ACT WAS THEREAFTER ISSU ED ON 10.10.2017. IN RESPONSE TO NOTICE U/S 148 OF THE ACT, A SSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2010-11 ON 07.10.2017 DECLARING TOTAL INCOME AT RS.6,33,630/-. SUBSEQUENTLY, ASSESSMENT WAS FR AMED U/S 143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 20.11.2017 AND THE TOTAL INCOME WAS DETERMINED AT RS.10,48,300/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 21.05.2019 (IN APPEAL NO.PN/CIT(A)-4/WARD-6(2), PUNE/149/201 7- 18/60) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY TH E ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLO WING GROUNDS : 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS.3,50,000/- ON ACCOUNT OF DISALLOWANCE OF 12% OF VARIOUS EXPENS ES. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT APP ELLANT HAD SUBMITTED DETAILS OF ALLOWANCE OF DEPRECIATION RS.6,23,525/-, INTEREST ON LOAN EXPENDITURE RS.3,19,285/- AND SALARY EXPENDITURE RS .6,27,000/- AND NO DISALLOWANCE WAS WARRANTED OUT OF THESE ALLOWANC ES AND EXPENSES. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE DISALLOWANCE OF 12% OF ALL THE EXPENSES IS ON HIGHER SIDE AND SHOULD HA VE RESTRICTED TO REASONABLE AMOUNT AS PRAYED BY APPELLANT. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. BEFORE ME, LD.A.R. AT THE OUTSET SUBMITTED THAT LD.CIT(A ) HAS PASSED AN EX-PARTE ORDER AND HAS NOT DECIDED THE ISSU E ON MERITS. LD.A.R. ALSO FILED THE SWORN AFFIDAVIT OF ASSESSEE WHEREIN ASSES SEE SUBMITTED THAT NOTICES OF HEARING OF APPEAL WERE SERVED ON HIS WIFE ON 16.11.2018 AND 05.02.2019 AND THAT HIS WIFE BEING UN-EDUCA TED DID NOT KNOW THE SIGNIFICANCE OF SAID NOTICES AND HENCE, FORGOT TO HANDOVER THE SAME OR TO INTIMATE THE SAME TO HIM AND THAT HE KNEW ABOUT THE 3 SAME ONLY AFTER RECEIPT OF EX-PARTE ORDER PASSED BY CO MMISSIONER OF INCOME TAX (APPEALS)-4, PUNE. LD.A.R. SUBMITTED THAT IF GIVE N A CHANCE, ASSESSEE UNDERTAKES TO APPEAR BEFORE LOWER AUT HORITIES AND FURNISH ALL THE REQUIRED DETAILS TO SUBSTANTIATE HIS CASE. HE THEREFORE SUBMITTED THAT ASSESSEE BE GRANTED ONE MORE OPPORTUN ITY TO EXPLAIN HIS CASE. LD.D.R. ON THE OTHER HAND SUPPORTED THE ORD ER OF AO AND LD.CIT(A) AND OBJECTED TO LD.A.R.S PRAYER FOR 2 ND INNINGS. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO ADDITION OF RS.3,50,000/- BEING 12% OF VARIOUS EXPENSES CLAIMED. THE P ERUSAL OF ORDER OF LD.CIT(A) REVEALS THAT LD.CIT(A) HAS PASSED AN EX -PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HE ARING SHOULD BE AFFORDED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD AND IN VIEW OF THE REASONS MENTIONED IN THE AFFIDAV IT FILED BY THE ASSESSEE, I AM OF THE VIEW THAT ONE MORE OPPORTUN ITY BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LOWER AUT HORITIES. I THEREFORE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STA TE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BO TH THE PARTIES. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL T HE DETAILS CALLED FOR BY THE AUTHORITIES. IN VIEW OF MY DECISION TO RESTORE THE ISSUE TO LD.CIT(A), I AM NOT ADJUDICATING ON MERITS THE G ROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 9 TH DAY OF OCTOBER, 2019. /- SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 9 TH OCTOBER, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-4, PUNE. PR. CIT-3, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.