Shri Nitin Goel, V. The I..T.O.,

ITA 12/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2771 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER ITA NO.12/IND/2010 A.YS. 2006-07 NITIN GOEL INDORE PAN - ABOPG-0372L APPELLANT VS INCOME TAX OFFICER 2(2) INDORE RESPONDENT APPELLANT BY : SHRI ASHISH GOYAL, CA RESPONDENT BY : SHRI P.K. MITRA, SR. DR O R D E R PER JOGINDER SINGH, JM THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER O F THE LEARNED CIT(A) DATED 1.10.2009 ON THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN PASSING THE EX-PRATE ORDER, WITHOUT VERIFYING THE FACT THAT APPLICATION SEEKING ADJOURNMENT HAS BEEN FILED BY THE APPELLANT ASSESSEE OR NOT. 2. WITHOUT PREJUDICE TO GROUND NO. 1 ABOVE, IT IS SUBMITTED THAT ON THE FACTS AND IN THE 2 CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN (A) CONFIRMING THE ADDITION OF RS.19,998/- MADE BY THE LEARNED A.O. ALLEGING THAT THERE EXISTED DIFFERENCE IN CLOSING BALANCE APPEARING IN THE BALANCE-SHEET OF THE ASSESSEE AND IN THE COPY OF ACCOUNT OF SHRI NEERAJ GOEL, WITHOUT CONSIDERING THE EXPLANATION SUBMITTED BY THE APPELLANT IN STATEMENT OF FACTS AND WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT. (B) CONFIRMING THE DISALLOWANCE OF RS.93,683/- OUT OF INTEREST PAID ON HOUSING LOAN TO SHRI NARESH GOEL, MADE BY THE A.O. WITHOUT VERIFYING THE FACTS THAT BESIDES RS.10,516/- (50% SHARE OF INTT.) PAID TO BANK, INTEREST AMOUNTING TO RS.93,683/- WAS SEPARATELY PAID TO SHRI NARESH GOEL ON PRIVATE LOAM OBTAINED FOR HOUSE CONSTRUCTION AND WITHOUT ALLOWING OPPORTUNITY OF HEARING. (C) CONFIRMING THE DISALLOWANCE OF RS. 1,20,000/- (RS. 60,000/- ALLEGING EXCESSIVE PAYMENT AS COMPARED TO ACADEMIC QUALIFICATION OFSMT. NEENA GOEL + ALLEGED EXCESS PAYMENT OF RS. 60,000/- FOR THREE MONTHS IN LUMP SUM) WITHOUT VERIFYING THE FACTS SUBMITTED BY THE APPELLANT AND THAT TOO WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD. (D) CONFIRMING THE DISALLOWANCE OF RS. 25,331/- OUT OF TELEPHONE EXPENSES, WITHOUT VERIFYING THE FACTS OF CASE AS SUBMITTED BY THE APPELLANT.CONFIRMING THE DISALLOWANCE OF RS.32,114/- (RS.9,530/- OUT OF VEHICLE RUNNING + RS.22584/- DEPRECIATION ON VEHICLE) WITHOUT CONSIDERING SUBMISSIONS MADE BY THE APPELLANT. 3 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I ASHISH GOEL, LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. MITRA, LEARN ED SENIOR DR. OUT OF THE ABOVE GROUNDS, THE LEARNED COUNSEL FOR THE A SSESSEE DID NOT PRESS GROUND NO.1, THEREFORE, THIS GROUND IS DISMIS SED AS NOT PRESSED. 3. FOR GROUND NO. 2 ALONG WITH SUB-GROUNDS I.E. (A) TO (E) IT WAS PLEADED BY THE LD. COUNSEL FOR THE ASSESSEE THAT A VIEW HAS BEEN TAKEN BY THE LEARNED FIRST APPELLATE AUTHORITY WITHOUT PR OVIDING DUE OPPORTUNITY TO THE ASSESSEE, THEREFORE, IT WAS PLEADED THAT THI S APPEAL MAY BE REMANDED BACK TO THE FILE OF THE AO FOR FRESH ADJUD ICATION. THE LEARNED SENIOR DR THOUGH DEFENDED THE IMPUGNED ORDER BUT DI D NOT OBJECT IF THE ISSUES ARE SENT TO THE LEARNED AO FOR FRESH ADJUDIC ATION. 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS AND AL SO ON PERUSAL OF RECORD, WE FIND THAT ONE MISS PRIYANKA KAWLIYA FROM THE OFFICE OF THE LD. COUNSEL FOR THE ASSESSEE ATTENDED THE PROCEEDINGS A ND MOVED ADJOURNMENT PETITION WHICH WAS ALLOWED AND THE APPE AL WAS ADJOURNED TO 22 ND SEPTEMBER, 2009. SINCE NONE ATTENDED ON THE APPOI NTED DATE, THEREFORE, THE APPEAL WAS DECIDED ON MERIT. HOWEVER , THE FACT REMAINS THAT NO EFFECTIVE REPRESENTATION WAS MADE ON BEHALF OF THE ASSESSEE. WHAT MAY BE THE REASONS, WE ARE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, KEEPING IN VIEW THE P RINCIPLE OF NATURAL JUSTICE, WE REMAND THIS MATTER TO THE FILE OF THE L EARNED AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW FOR WHICH DUE O PPORTUNITY OF BEING 4 HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENT OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 24 TH JUNE, 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER JUNE 24, 2010 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE *DBN/