M/s. K.G. Agro Processors Pvt. Ltd., Dhule V. Assistant Commissioner of Income-tax,

ITA 1282/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0935 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 13-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIVYA BAJPAI
• Assessee Lawyers: V L JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 1282 /PN/201 4 / ASSESSMENT YEAR : 20 1 0 - 1 1 M/S. K.G. AGRO PROCESSORS PVT. LTD., K.G. MILL COMPOUND, NEAR MARKET YARD, AT SHIRPUR, DHULE 425405 . / APPELLANT PAN: AAAC K7390N VS. THE A SST . COMMISSIONE R OF INCOME TAX, CIRCLE 3 (1) , DHULE . / RESPONDENT / APPELLANT BY : SHRI V.L. JAIN / RESPONDENT BY : SMT. DIVYA BAJPAI / DATE OF HEARING : 14 . 1 0.2015 / D ATE OF PRONOUNCEMENT: 28 .1 0.2015 DATE OF HEARING : 14 . 1 0.2015 D ATE OF PRONOUNCEMENT: 28 .1 0.2015 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I , NASHIK , DATED 09 . 0 4 .20 1 4 RELATING TO ASSESSMENT YEAR 20 1 0 - 1 1 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCO ME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN ITS AP PEAL VIDE GROUND OF APPEAL NO.1, WHICH READS AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN NOT ADJUDICATING THE FOLLOWING ADDITION GROUNDS OF APPEAL: A. THE LEARNED ASSESSING OFFICER ERRED IN ESTIMATING RECEIPTS WITHOUT REJECTING BOOKS OF ACCOUNT IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 145(3) OF THE INCOME TAX ACT, 1961. ITA NO. 1282 /PN/20 1 4 M/S. K.G. AGRO PROCESSORS PVT. LTD. 2 B. THE LEARNED ASSESSING OFFICER ERRED IN LAW IN NOT PROVIDING A PROPER OPPORTUNITY OF BEING HEARD AND THUS VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 3. THE GRIEVANCE OF THE ASSESSEE BEFORE US WAS THAT, BEFORE THE CIT(A) , THE ASSESSEE IN ADDITION TO THE GROUNDS OF APPEAL HAD RAISED TWO ADDITIONAL GROUNDS OF APPEAL, WHICH HAVE NOT BEEN ADJUDICATED BY THE CIT(A) THOUGH THE SAME HAS BEEN REFERRED BY HIM IN THE APPELLATE ORDER UNDER PARA 4.1. THE CASE OF THE ASSESSEE BEFORE US WAS THAT THE SAID ADDITIONAL GROUNDS OF APPEAL GO TO THE ROOT OF THE ISSUE AND BEFORE ADMITTI NG AND ADJUDICATING THE SAID ADDITIONAL GROUNDS OF APPEAL, THE ISSUE COULD NOT BE DECIDED ON MERITS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT THE CIT(A) HAD ELABORATELY DECIDED THE ISSUE ON MERITS AND HENCE, THERE WAS NO MERIT IN THE GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRELIMINARY ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST NON - ADJUDICATION OF ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE CIT(A). FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS APPARENT THAT THE ASSESSEE HAD RA I SED THREE GROUNDS OF APPEAL, WHICH ARE REPRODUCED UNDER PARA 4 AT PAGE 3 OF THE APPELLATE ORDER, WHICH READ AS UNDER: - 4. THE FOL LOWING ARE THE GROUNDS OF APPEAL: 1 ) ON THE FACTS AND THE PREVAILING CIRCUMSTANCES OF THE CASE THE LEARNED AO HAS ERRED IN MAKING ADHOC ADDITION OF RS.7,00,000/ - CONSIDERING AND ASSUMING LOW YIELD IN THE MOONG ACCOUNT IS REDUCED. THEREFORE, ADDITION OF RS.7 ,00,000/ - MAY PLEASE BE DELETED. 2 ) ON THE FACTS AND THE PREVAILING CIRCUMSTANCES OF THE CASE THE LEARNED AO HAS ERRED IN MAKING ADDITION OF RS.6,05,47,016/ - AS AN UNDISCLOSED TOLL RECEIPTS, ON THE BASIS OF SAID FIR WHICH IS SUBJUDICE BEFORE COURT OF LAW AND ON THE BASIS OF SURMISE AND ASSUMPTIONS. 3 ) ON THE FACTS AND THE PREVAILING CIRCUMSTANCES OF THE CASE THE LEARNED AO HAS ERRED IN MAKING ADDITION OF RS.3,12,607/ - ON ACCOUNT OF DISALLOWANCE, ASSUMING ESTIMATED EXPENSES @ 0.5% OF TOLL EXPENSES. ITA NO. 1282 /PN/20 1 4 M/S. K.G. AGRO PROCESSORS PVT. LTD. 3 6. FURTHER, THE ASSESSEE HAD RAISED TWO ADDITIONAL GROUNDS OF APPEAL, WHICH ARE REPRODUCED BY THE CIT(A) UNDER PARA 4.1 AT PAGE 3 OF THE APPELLATE ORDER , WHICH READ AS UNDER : - 4.1 THE APPELLANT HAS TAKEN TWO ADDITIONAL GROUNDS OF APPEAL: - 1 ) THE LEARNED ASSESSING OFF ICER ERRED IN ESTIMATING UNDISCLOSED RECEIPTS WITHOUT REJECTING BOOKS OF ACCOUNT IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 145(3) OF THE INCOME TAX ACT, 1961. 2 ) THE LEARNED ASSESSING OFFICER ERRED IN LAW IN NOT PROVIDING A PROPER OPPORTUNITY OF BEING H EARD AND THUS VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 7. THE PERUSAL OF APPELLATE ORDER REFLECTS THE CIT(A) TO HAVE ADJUDICATED THE ISSUE ON MERITS ELABORATELY WITHOUT FIRST ADMITTING AND ADJUDICATING THE JURISDICTIONAL ISSUE RAISED BY THE ASSESSEE BY WAY OF ADDITIONAL GROUNDS OF APPEAL. THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE BY WAY OF ADDITIONAL GROUNDS OF APPEAL WAS THAT THE ASSESSING OFFICER HAD ERRED IN ESTIMATING THE UNDISCLOSED RECEIPTS, WITHOUT REJECTING BOOKS OF ACCOUNT IN LINE WITH TH E PROVISIONS OF SECTION 145(3) OF THE ACT . THE SECOND ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE WAS AGAINST THE ORDER OF ASSESSING OFFICER IN NOT PROVIDING PROPER OPPORTUNITY OF BEING HEARD AND VIOLATING THE PRINCIPLES OF NATURAL JUSTICE I.E. REL YING ON CERTAIN STATEMENTS AND DOCUMENTS, WHICH WERE NEVER CONFRONTED TO THE ASSESSEE. THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.6,05,47,016/ - ON ACCOUNT OF UNDISCLOSED TOLL RECEIPTS, ON THE BASIS OF FIR AND THE STATEMENT OF TWO DIFFERENT PERSONS. THE SAID GROUND OF APPEAL WAS IN ADDITION TO OTHER ISSUES RAISED BY THE ASSESSEE. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE GO TO ROOT OF THE ISSUE OF MAKING THE ADDITION ON A CCOUNT OF UNDISCLOSED RECEIPTS IN THE HANDS OF ASSESSEE, THE FIRST STEP TO BE FOLLOWED BY THE CIT(A) IS TO ADMIT AND ADJUDICATE THE ADDITIONAL GROUND OF APPEAL IN ACCORDANCE WITH LAW. IN THE ABSENCE OF THE CIT(A) HAVING ADMITTED THE SAME AND ADJUDICATING THE ADDITIONAL GROUNDS OF APPEAL, THE APPELLATE ORDER ITA NO. 1282 /PN/20 1 4 M/S. K.G. AGRO PROCESSORS PVT. LTD. 4 PASSED BY THE CIT(A) ON THE MERITS OF THE ISSUE SUFFERS FROM LACUNAE. IN VIEW OF THE PRINCIPLES OF NATURAL JUSTICE, WE DEEM IT FIT TO RESTORE THE APPEAL BACK TO THE FILE OF CIT(A) , WHO SHALL ADMIT AND ADJUDICATE THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND THEREAFTER, ADJUDICATE THE ISSUE ON MERITS AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE EVIDENCE IN THIS REGARD. THE CIT(A) SHALL AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . CONSEQUENTLY, THE APPEAL IS RESTORED BACK TO THE FILE OF CIT(A) TO DECIDE IN LINE WITH OUR DIRECTIONS. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 28 TH DAY OF OCTOBER , 201 5. SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 28 TH OCTOBER , 2015 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE AP PELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , NASHIK ; 4. / THE CIT - I, NASHIK ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE