ITO, V. Chauhan Dairy,

ITA 1279/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9914 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 19-08-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 07-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Assessment record; Set aside
• Section: 143(2); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `B : NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.1279/DEL./2008 (ASSESSMENT YEAR : 2004-05) ITO, BADAUN. VS. M/S CHAUHAN DIARY, CHANDAUSI ROAD ISLAM NAGAR, BADAUN (U.P.) (PAN/GIR NO.ABKPG6490R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH, ADV. REVENUE BY : SHRI MANISH GUPTA, SR.DR ORDER PER K.D. RANJAN: AM THIS APPEAL BY THE REVENUE FOR YEAR ASSESSMENT Y EAR 2004-05 ARISES OUT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), BAREILLY. 2. ONE OF THE GROUND OF APPEAL RAISED BY THE REVENU E INCLUDED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS), BAREILLY HAD ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE FIRM TOOK OVER ASSETS AND LIABILI TIES OF PREVIOUS BUSINESS OF AOP AND DIRECTING THE ASSESSING OFFICER TO EXAMINE THE FEAS IBILITY OF ACTION U/S 147/148 OF THE ACT FOR THE PERIOD 01.12.2003 TO 31.12.03 IN THE STATUS OF AOP WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSING OFFICER UNDER RULE 46A (3) OF I.T. RULES, 1962. 3. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT T HE ASSESSING OFFICER ISSUED NOTICE AND QUESTIONNAIRE TO THE ASSESSEE. THE NOTICES WER E PROPERLY SERVED UPON ONE OF THE PARTIES. IN SPITE OF PROPER SERVICE OF NOTICE, NO COMPLIANCE WAS MADE. THE ASSESSING OFFICER PROVIDED FURTHER OPPORTUNITY BUT NONE ATTEN DED THE ASSESSMENT PROCEEDINGS NOR WAS ANY ADJOURNMENT SOUGHT. THE ASSESSING OFFICER, THEREFORE, COMPLETED THE ASSESSMENT U/S 144 OF THE ACT ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. 4. ON APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), ASSESSEE CHALLENGED THE ACTION OF ASSESSING OFFICER ON VARIOUS GROUNDS. THE ASSESSEE FILED PAPER BOOK ALONG WITH THE REASONS EXPLAINING THE NON-COMPLIANCE OF N OTICES ISSUED U/S 143(2) OF THE ACT. THE COMMISSIONER OF INCOME-TAX (APPEALS) ASKED THE COMMENTS OF THE ASSESSING OFFICER IN THE REMAND REPORT. THE ASSESSING OFFICE R SENT HIS REPORT VIDE LETTER DATED 28.9.2007 REQUESTING COMMISSIONER OF INCOME-TAX (AP PEALS) TO REJECT THE PETITION FILED FOR ADMISSION OF ADDITIONAL EVIDENCE. THE COMMISSI ONER OF INCOME-TAX (APPEALS), HOWEVER, AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, DECIDED THE APPEAL ON MERITS. 5. DURING THE COURSE OF HEARING BEFORE US, LD.SR.DR OF THE REVENUE SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOT RE CORDED REASONS FOR ADMITTING ADDITIONAL EVIDENCE. THE ASSESSING OFFICER WAS NOT PROVIDED OPPORTUNITY AS PER RULE 46A(3) AND THE APPEAL HAD BEEN DECIDED ON MERITS WI THOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER. HE, THEREFORE, REQ UESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. ON THE OTHER HAND LD.AR OF THE ASSESSEE, REFERRING TO THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS) O N PAGE 2 SUBMITTED THAT PAPER BOOK CONTAINING 77 PAGES WAS FORWARDED TO ASSESSING OFFI CER. THE ASSESSING OFFICER VIDE HIS REMAND REPORT DATED 28.09.2007 HAS GIVEN PARA-WISE REPLY UP TO ITEM NO.9. HOWEVER, HE HAS CHOSEN NOT TO REPLY IN RESPECT OF ITEM NO.10 WH ICH RELATED TO THE PAPER BOOK. HENCE, THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS PROVID ED PROPER OPPORTUNITY TO ASSESSING OFFICER AND ACCORDINGLY THE APPEAL SHOULD BE HEARD AND DECIDED ON MERITS. IN REJOINDER, LD.SR.DR FOR THE REVENUE PRODUCED THE ASSESSMENT RE CORDS ACCORDING TO WHICH PAPER BOOK CONTAINING 77 PAGES AS MENTIONED IN PARA.10 OF APPLICATION FILED BY THE ASSESSEE BEFORE COMMISSIONER OF INCOME-TAX (APPEALS) WAS NOT FORWARDED. BECAUSE OF THIS REASON, THE ASSESSING OFFICER HAD NOT GIVEN ANY COM MENTS AND HIS REMAND REPORT WAS BASED UP TO PARA.9 OF THE APPLICATION FILED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS). 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE SCRUTINY OF ASSESSMENT RECORD, WE FIND THA T PAPER BOOK CONTAINING 77 PAGES IS NOT AVAILABLE IN THE ASSESSMENT RECORDS. THE COMMI SSIONER OF INCOME-TAX (APPEALS) HAS ALSO NOT ASKED THE ASSESSING OFFICER TO SEND HIS CO MMENTS ABOUT THE PAPER BOOK. AT THE SAME TIME, ASSESSING OFFICER HAS ALSO NOT ASKED THE COMMISSIONER OF INCOME-TAX (APPEALS) TO SEND THE COPY OF PAPER BOOK. THEREFOR E, IN OUR CONSIDERED OPINION, BOTH THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER OF I NCOME-TAX (APPEALS) HAVE ERRED WITH REGARD TO THE PAPER BOOK. THE ASSESSING OFFICER SH OULD HAVE ASKED THE COPY OF PAPER BOOK FROM COMMISSIONER OF INCOME-TAX (APPEALS) AND SHOULD HAVE SENT HIS COMMENTS. ON THE OTHER HAD, EVEN IF PAPER BOOK WAS SENT BY CO MMISSIONER OF INCOME-TAX (APPEALS) AS MENTIONED IN HIS ORDER, HE SHOULD HAVE ASKED THE ASSESSING OFFICER TO SPECIFICALLY COMMENT ON THE ADDITIONAL EVIDENCE FILED BY THE ASS ESSEE IN THE FORM OF PAPER BOOK. IN VIEW OF THESE FACTS, PRINCIPLE OF NATURAL JUSTICE R EQUIRE THAT FAIR OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSING OFFICER SO AS TO EXAMINE THE CONTENTION OF THE ASSESSEE ON MERITS. WE, THEREFORE, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIONS THAT HE WILL EXAMINE THE EVIDENCE FILED IN PAPER BO OK AND DECIDE THE ISSUE ON MERITS AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. SINCE WE HAVE SET ASIDE THE ISSUE TO BE DECIDED AFRESH, WE DO NOT FEEL IT P ROPER TO DECIDE OTHER GROUND ON MERITS. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN OPEN COURT ON 28 TH AUG., 2009. [ I.P. BANSAL ] [ K. D. RAN JAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : AUG. 28, 2009. *SKB* COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), BAREILLY. 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT