M/s. Batra Henley Cables, New Delhi V. ITO, New Delhi

ITA 123/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5502 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-03-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Keywords: Principle of natural justice

Judgement Text

ITA NO.123/DEL/2013 ASSTT.YEAR: 1997-98 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `A NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI R.P. TOLANI, JUDICIAL MEMBER I.T.A.NO.123/DEL/2013 ASSESSMENT YEAR : 1997-98 BATRA HENLEY CABLES, VS INCO ME TAX OFFICER, GRANDLAY CINEMA COMPLEX, WARD 12(7 ), NEW FRIENDS COLONY, NEW DELHI. NEW DELHI. (PAN: AAAFB8582G) (APPELLANT) (RESPONDENT) APPELLANT BY: ASHWANI KUMAR RESPONDENT BY : GAGAN SOOD, DR O R D E R PER R.P. TOLANI, J.M. IN THIS APPEAL, THE ASSESSEE HAS RAISED VARIOUS IS SUES WHICH CAN BE SUMMARIZED AS UNDER:- I) LD. COMMISSIONER OF INCOME TAX(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.99,14,298/- BEING THE DIFFERENCE BETWEEN THE PROFIT OF RS.28,998/- AS PER P&L ACCOUN T AND THE PROFIT OF RS.99,43,296/- ON ACCOUNT OF ALLEGED UNDE CLARED VALUE OF CLEARANCE OF WIRES AD CABLE DEPOSITED IN FOUR BA NKS. II) LD. COMMISSIONER OF INCOME TAX(A) WAS NOT JUSTIFIED IN UPHOLDING THE FOLLOWING ADDITIONS:- ITA NO.123/DEL/2013 ASSTT.YEAR: 1997-98 2 A) A SUM OF RS.7,632/- I.E. 1/6 TH OUT OF TELEPHONE EXPENSES ON THE GROUND OF ABSENCE OF BILLS; B) A SUM OF RS.6,054/- I.E. 1/6 TH OUT OF VEHICLE RUNNING AND MAINTENANCE IN THE ABSENCE OF VOUCHERS; C) A SUM OF RS.2,183/- I.E. 1/6 TH OUT OF REBATE AND DISCOUNT; (III) A SUM OF RS.2,45,000/- ON ACCOUNT OF UNEXPL AINED SOURCES IN THE CAPITAL ACCOUNTS OF THE PARTNERS. 2. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET CONTE NDS THAT THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE IMPOUNDED BY THE CENT RAL EXCISE DEPARTMENT. AGAINST THE ADDITIONS, ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT IN ITA NO. 997/DEL/2004 DATED 22.2.2008 SETTING ASIDE THE ASSESSMENT AND RESTORING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WI TH A DIRECTION TO MAKE A FRESH ASSESSMENT. THE ASSESSEE WAS DIRECTED TO PRO DUCE BOOKS OF ACCOUNTS WHICH WERE LYING IN THE CUSTODY OF CENTRAL EXCISE D EPARTMENT. DURING FRESH ASSESSMENT PROCEEDINGS ALSO, THE ASSESSEE COULD NOT GET RELEASE OF BOOKS OF ACCOUNTS FROM CENTRAL EXCISE DEPARTMENT. IN THESE COMPELLING CIRCUMSTANCES, ASSESSING OFFICER WAS FORCED TO AGAI N PASS ASSESSMENT WITHOUT THE BOOKS OF ACCOUNTS. THE ADDITIONS WERE REPEATED AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX(A). LD. COUNSEL CONTENDS THAT NOW THE BOOKS OF ACCOUNTS HAVE BEEN RELEASED BY THE CENTRAL EXCISE DEPARTMENT AND ITA NO.123/DEL/2013 ASSTT.YEAR: 1997-98 3 ASSESSEE IS IN A POSITION TO PRODUCE THE SAME BEFOR E THE ASSESSING OFFICER. SINCE THE EARLIER ORDER OF ITAT WAS TO THE EFFECT T HAT THE ASSESSMENT SHOULD BE FRAMED AFTER VERIFICATION OF THE BOOKS OF ACCOUN TS, IN THE INTEREST OF SUBSTANTIAL JUSTICE, IT IS PLEADED THAT THE IMPUGNE D ASSESSMENT BEING WITHOUT VERIFICATIONS OF BOOKS NEEDS AGAIN TO BE SET ASIDE. 3. LD. COUNSEL FOR THE ASSESSEE GAVE AN UNDERTAKING THAT THE ASSESSEE WILL FULLY COOPERATE WITH THE FRESH ASSESSMENT PROCEEDIN GS IF THEY ARE DIRECTED AND PRODUCE THE RELEVANT INFORMATION BEFORE THE AS SESSING OFFICER. IT IS PLEADED THAT THIS SITUATION HAS ARISEN BECAUSE OF T HE REASONS BEYOND THE CONTROL OF THE ASSESSEE AND SO FAR ASSESSEE HAS NOT BEEN HEARD BASED ON THE BOOKS OF ACCOUNTS. THEREFORE, IT IS DESIRABLE AND IN THE INTEREST OF PRINCIPLES OF NATURAL JUSTICE THAT THE PRESENT ASSESSMENT MAY BE SET ASIDE AND RESTORED BACK TO REFRAME THE ASSESSMENT EXPEDITIOUSLY. LD. COUNSEL RELIED ON THE ORDER OF ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ITAT VIDE ITS ORDER DIRECTED THE ASSESSING OFFICER TO REFRAME THE ASSESSMENT LOOKING AT THE CRUCIAL REASO N THAT THE BOOKS OF ACCOUNTS REMAINED IN THE CUSTODY OF CENTRAL EXCISE DEPARTMENT. THUS, THE EMPHASIS WAS ON PROPER ASSESSMENT BASED ON VERIFICA TION OF THE BOOKS OF ACCOUNTS WHICH COULD NOT BE ACHIEVED IN THE SECOND ROUND AS THE BOOKS ITA NO.123/DEL/2013 ASSTT.YEAR: 1997-98 4 COULD NOT BE PRODUCED BY THE CENTRAL EXCISE DEPARTM ENT. THE FAULT IS NOT ATTRIBUTABLE TO THE ASSESSEE. IT HAS BEEN ADMITTED THAT BOOKS OF ACCOUNTS HAVE NOW BEEN RELEASED AND AN UNDERTAKING HAS BEEN GIVEN THAT THEY WILL BE PRODUCED BEFORE THE ASSESSING OFFICER AND FULL COOP ERATION WILL BE RENDERED BY THE ASSESSEE IN EXPEDITIOUSLY FINALIZING THE ASS ESSMENT. IN OUR CONSIDERED VIEW AND IF THE PRESENT ASSESSMENT IS SET ASIDE IN THESE PECULIAR CIRCUMSTANCES AND RESTORED BACK TO THE ASSESSING OF FICER TO REFRAME THE SAME AFRESH AFTER GIVING THE ASSESSEE AN ADEQUATE O PPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.3.2014. SD/- SD/- (G.D. AGRAWAL) (R.P. TOLANI) VICE PRESIDENT JUDICIAL MEMBER DT. 24TH MARCH 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR