ITO, New Delhi V. M/s. Micron Marketing Pvt. Ltd., New Delhi

ITA 1222/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4066 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 09-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Section: 133A; 201(1)

Judgement Text

ITA NOS. 1221-1223 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NOS. 1221, 1222 & 1223/DEL/2011 A.YRS. : 2006-07, 2007-08 & 2008-09 ITO - WARD - 50(4), ROOM NO. 501, AAYAKAR BHAVAN, LAXMI NAGAR, NEW DELHI VS. M/S MICRON MARKETING, 1/7, SUNDER VIHAR OUTER RING ROAD, PASCHIM VIHAR, NEW DELHI (TAN NO. : DELM 14396E) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : NONE DEPARTMENT BY : SH. KISHORE B. (D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.12.2010 FOR ASSESSMENT YEARS 2006-07, 2007-08 & 2008-09. 2. THE ISSUE RAISED READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DIRECTING THE AO (TDS) TO VERIFY ALL THE FACTS AND FIGURES GIVEN BY THE A/R IN THE TABLE DURING THE APPELLATE PROCEEDIN GS AFTER GIVING APPELLANT AN OPPORTUNITY OF PRODUCING THE EVIDENCE AND IF FACTS ARE FOUND TO BE CORRECT, ALLOW APPROPRIATE RELIEF T O ASSESSEE AS HE (C.I.T.(A)) HAVE A LOT OF WORK LOAD AND CANNOT VERI FY EACH TRANSACTION NOW. THE ORDER OF LD. COMMISSIONER OF I NCOME TAX ITA NOS. 1221-1223 2 (APPEALS) TANTAMOUNT TO A SET ASIDE ORDER WHICH IS NOT PERMISSIBLE AFTER 01.06.2001 AFTER SECTION 251(1)(A) WAS AMENDED. 3. THE ASSESSEE IN THIS CASE IS A PRIVATE LIMITED CO MPANY ENGAGED IN THE BUSINESS OF MULTI LEVEL NETWORK MARKETING. I N THIS CASE A SURVEY OPERATION U/S 133A OF THE INCOME TAX ACT, 1961 WAS C ONDUCTED ON 3.9.2008 AT THE BUSINESS PREMISES OF THE ASSESSEE. SUBSEQUENTLY, THE COMBINED ASSESSMENT ORDER U/S. 201(1) & 201(1A) DATED 25.2.2009 OF ALL THESE ASSESSMENT YEARS WAS PASSED BY THE ASSESS ING OFFICER RAISING AN AGGREGATE DEMAND OF ` 1,83,97,976/-. 4. AGAINST THE ABOVE ORDER THE ASSESSEE APPEALED B EFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). LD. COMMISSION ER OF INCOME TAX (APPEALS) CONSIDERED THE ASSESSEES SUBMISSION. IN THE APPELLATE ORDER, LD. COMMISSIONER OF INCOME TAX (APPEALS) INT ERALIA REFERRED TO THE TABLE AS SUBMITTED BY THE ASSESSEE AND IN PARA 1 0 IN HIS APPELLATE ORDER CONCLUDED AS UNDER:- 10. THE ASSESSING OFFICER (TDS) IS DIRECTED TO VERI FY ALL THE FACTS AND FIGURES GIVEN BY LD. AUTHORISED REPRESENTATIVE IN THE ABOVE TABLE, AFTER GIVING APPELLANT ON OPPORTUNITY OF PRO DUCING THE EVIDENCES, AND IF FACTS ARE FOUND TO BE CORRECT, AL LOW APPROPRIATE RELIEF TO ASSESSEE AT HIS STAGE. AS I HAVE LOT OF WORK LOAD AND I CANNOT VERIFY EACH TRANSACTION NOW, I DIRECT THE AS SESSING OFFICER TO DO SO. THE A.R. IS DIRECTED TO PRODUCE ALL EVI DENCES / BOOKS OF ACCOUNTS BEFORE ASSESSING OFFICER AND COOPERATE WI TH HIM FOR GIVING APPEAL EFFECT TO THIS ORDER. ITA NOS. 1221-1223 3 5. AGGRIEVED BY THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF OF THE ASSE SSEE. HOWEVER, IN OUR CONSIDERED OPINION, THE MATTER MAY BE DISPOSED OF BY HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. UPON CAREFUL CONSI DERATION, WE FIND THAT THE CONTENTION OF THE REVENUE IS THAT THE ABOV E DIRECTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TANTAMOUNTS TO SET ASIDE. WE FIND THAT CONSEQUENT TO AMENDMENT IN SECTION 251( 1)(A), THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NO LONGER HAS POWER TO SET ASIDE THE MATTER. ACCORDINGLY, FINDING THE REVENU ES GRIEVANCE TO BE PROPER ONE, WE REMIT THE ISSUE TO THE FILES OF THE L D. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER THE SAME AFRESH AN D PASS A SPEAKING ORDER. 7. IN THIS RESULT, ALL THE THREE APPEALS BY THE R EVENUE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/05/2011 UP ON CONCLUSION OF HEARING. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 09/5/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES