M/s Maa Durga Steel, Kala Amb V. ITO, Nahan

ITA 1207/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6689 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Business income; Opportunity of being heard; Question of law; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO. 1207/CHD/2018 / ASSESSMENT YEAR : 2009-10 M/S MAA DURGA STEEL, TRILOKPUR ROAD, KALA AMB (HP). VS THE ITO, NAHAN (HP). ./ PAN NO: AAKFM8272G / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI PARIKSHIT AGGARWAL # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! &/ DATE OF HEARING : 31.01.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 28.02.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 19.07.2018 OF CIT(A) SHI MLA PERTAINING TO 200910 ASSESSMENT YEAR. 2. THE LD. AR AT THE OUTSET SUBMITTED THAT THE DEFECT POINTED OUT BY THE REGISTRY HAS BEEN CURED. IT IS SEEN THAT NOTING TO THIS E FFECT HAS BEEN GIVEN BY THE PARTIES. PARTIES WERE HEARD ONLY IN RESPECT OF GROUND NO. 1 WH ICH READS AS UNDER : THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) IN APPEAL NO. IT/366/11-12/SML DATED 19.07.2018 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISIONS OF SECTION 250(6 ) OF THE INCOME TAX ACT,1961. 3. THE LD. AR INVITING ATTENTION TO THE IMPUGNED ORDER S UBMITTED THAT THOUGH VARIOUS OPPORTUNITIES HAVE BEEN GIVEN TO THE ASS ESSEE, HOWEVER, ASSESSEE DID NOT PARTICIPATE IN VIEW OF THE FACT THAT AT THE SPECIFIC P OINT OF TIME THE NOTICES WERE SENT, THE ASSESSEES FACTORY HAD BEEN CLOSED. ON ACCOUNT OF THIS FACT, THE ASSESSEE COULD NOT APPEAR. EVEN ON MERITS THE LD. AR SUBMITTED THAT THE CLAIM OF THE ASSESSEE IS ALLOWABLE IN TERMS OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVOM COTSPIN LTD . VS. PR. CIT IN ITA NO. 9 OF 2018 DATED 19.03.2018. REFERRING TO THE SAID DECISIO N IT WAS ITA 1207/CHD/2018 A.Y. 2009-10 PAGE 2 OF 2 SUBMITTED THAT THE INTEREST PERTAINS TO DELAYED PAYMENT AND THUS BEING THE BUSINESS RECEIPT IS ALLOWABLE. IT IS SEEN THAT THE HON'BLE C OURT AMONGST THE OTHER SUBSTANTIAL QUESTIONS OF LAW ALSO POSED THE FOLLOWED QUESTION : (III) AS TO WHETHER THE APPELLANT IS ENTITLED TO DE DUCTION OF THE INTEREST ACCRUED IN RESPECT OF LATE PAYMENT BY THE DEBTORS. 3.1 WHICH WAS ANSWERED IN THE FOLLOWING MANNER : IN SO FAR AS SUBSTANTIAL QUESTION OF LAW NO. 3 IS CONCERNED, THE SAME IS NO LONGER RES INTEGRA AND STANDS DECIDED IN FAVOUR OF THE ASSESSEE IN TERMS OF THE JUDGEMENT RENDERED BY THE HON'BLE APEX COURT IN COM MISSIONER OF INCOME TAX VS. GOVINDA CHOUDHURY AND SONS ITR 1993 (VOLUME 203 ) 881 AS ALSO THE DECISION RENDERED BY A CO-ORDINATE BENCH OF THIS CO URT IN ITA NO. 4015 OF 2013 TITLED AS COMMISSIONER OF INCOME TAX VS JAI PR AKASH HYDRO POWER VENTURES LTD. ON 15.05.2017. 4. HOWEVER, I FIND THAT THOUGH THE POSITION OF LAW IS CLEAR, THERE IS NO DISCUSSION ON FACTS. IN THE ABSENCE OF RELEVANT DISCUSSION IN THE ORDERS AVAILABLE AND NOTING THAT THE ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A) AND ALSO BEFORE THE AO, IT IS DEEMED APP ROPRIATE TO ALLOW IN THE CIRCUMSTANCES THE ALTERNATE PRAYER OF THE ASSESSEE IN THE CONTEXT OF THE ABOVE-MENTIONED GROUND NO. 1. THE SR.DR APPEARING FOR TH E REVENUE ON QUERY POSED NO OBJECTION TO THE REMAND. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION T O PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. AT THE SAME TIME THE ASSESSE E IS ADVISED TO PARTICIPATE FULLY AND FAIRLY BEFORE THE CIT(A) AS FAILING WHICH T HE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL A VAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARIN G ITSELF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02. 2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEM BER ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE 7. (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR