Yashshavi Rasayan Pvt.Ltd., Surat V. The Jt.CIT.,Navsari Range, Navsari

ITA 1301/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89282 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Rejection of books of accounts; Application of stay; Additional evidence
• Section: 142(1); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCO UNTANT MEMBER YASHSHAVI RASAYAN P. LIMITED, S.Y. NO. 60/1, GROUND FLOOR, PLOT NO. 1 & 2 NR. SHUKAN BUNGLOWS, OPP. MAHESHWARI BHAVAN CITY LIGHT, SURAT-395007 PAN: AAACY1854F (APPELLANT) VS JOINT COMMISSIONER OF INCOME TAX, NAVSARI RANGE, NAVSARI (RESPONDENT) H.L. EQUIPMENTS, S.Y. NO. 60/1, GROUND FLOOR, PLOT NO. 1 & 2 NR. SHUKAN BUNGLOWS, OPP. MAHESHWARI BHAVAN CITY LIGHT, SURAT-395007 PAN: AADFH2629H (APPELLANT) VS JOINT COMMISSIONER OF INCOME TAX, NAVSARI RANGE, NAVSARI (RESPONDENT) STAY PETITION NO. 35/AHD/2015 (IN ITA NO. 1301/AHD/2013) ASSESSMENT YEAR 2009-10 STAY PETITION NO. 36/AHD/2015 (IN ITA NO. 1303/AHD/2013) ASSESSMENT YEAR 2009-10 ITA NO. 1301/AHD/2013 ASSESSMENT YEAR 2009-10 SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 2 YASHSHAVI RASAYAN P. LIMITED, S.Y. NO. 60/1, GROUND FLOOR, PLOT NO. 1 & 2 NR. SHUKAN BUNGLOWS, OPP. MAHESHWARI BHAVAN CITY LIGHT, SURAT-395007 PAN: AAACY1854F (APPELLANT) VS JOINT COMMISSIONER OF INCOME TAX, NAVSARI RANGE, NAVSARI (RESPONDENT) H.L. EQUIPMENTS, S.Y. NO. 60/1, GROUND FLOOR, PLOT NO. 1 & 2 NR. SHUKAN BUNGLOWS, OPP. MAHESHWARI BHAVAN CITY LIGHT, SURAT-395007 PAN: AADFH2629H (APPELLANT) VS JOINT COMMISSIONER OF INCOME TAX, NAVSARI RANGE, NAVSARI (RESPONDENT) ASSESSEE BY: SHRI S.N. SOPARKAR, A.R. REVENUE BY: SHRI SUBHASH BAINS, CIT -D.R. DATE OF HEARING : 31-03-2015 DATE OF PRONOUNCEMENT : 24-04- 2015 / ORDER PER: RAJPAL YADAV, JUDICIAL MEMBER BOTH THE ASSESSEE BELONG TO A COMMON GROUP. THEIR APPEALS FOR 2009-10 HAVE BEEN DECIDED BY THE LD. FIRST APPELLAT E AUTHORITY ON 22 ND ITA NO. 1303/AHD/2013 ASSESSMENT YEAR 2009-10 SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 3 FEBRUARY, 2013 BY WAY OF SEPARATE ORDERS. THE ASSE SSEES HAVE FILED STAY APPLICATIONS WITH A PRAYER FOR STAY OF OUTSTANDING DEMAND AMOUNTING TO RS. 1,18,32,705/- IN THE CASE OF YASHSHVI RASAYAN PVT L TD AND RS. 1,16,25,982/- IN THE CASE OF H.L. EQUIPMENTS. THES E STAY APPLICATIONS WERE LISTED FOR HEARING ON 27 TH OF MARCH, 2015. THE BENCH HAS DIRECTED TO LIST THE APPEALS FOR HEARING ON 31 ST MARCH, 2015. IN THIS WAY, WE HAVE HEARD THE APPEALS ON MERIT. THE STAY APPLICATION WO ULD BECOME INFRUCTUOUS AND ACCORDINGLY DISMISSED. FIRST WE TAKE UP ITA NO. 1301/AHD/2013 2. THE ASSESSEE HAS TAKEN 21 GROUNDS OF APPEAL. H OWEVER LEARNED COUNSEL AT THE VERY OUTSET SUBMITTED THAT LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE APPEAL EX-PARTE WITHOUT AFFORDING PROPE R OPPORTUNITY OF HEARING TO THE ASSESSEE. SIMILARLY, IN THE CASE OF HC EQUI PMENTS ASSESSEE HAS TAKEN 10 GROUNDS OF APPEAL BUT IN GROUND NO. 1 IT H AS PLEADED THAT ITS APPEAL HAS BEEN DISMISSED BY THE FIRST APPELLATE AU THORITY EX-PARTE WITHOUT GIVING PROPER OPPORTUNITY OF HEARING. 3. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE H AVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECO RD THAT THE ASSESSEE M/S YASHSHVI RASAYAN PVT LTD HAS FILED ITS RETURN OF IN COME ELECTRONICALLY ON 30 TH SEPTEMBER,2009 DECLARING TOTAL LOSS OF RS. 25,92,8 9,127/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T AND A NOTICE U/S. 143(2) WAS ISSUED AND SERVED ON 25 TH AUGUST, 2010. LD. AO HAS PASSED THE ASSESSMENT ORDER ON 30 TH DECEMBER, 2011. LD. AO HAS DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT RS. 4,86,40,9 34/- AS AGAINST THE LOSS DECLARED BY ASSESSEE AT RS. 2,92,89,127/- SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 4 4. IN THE CASE OF M/S H.L. EQUIPMENTS, THE ASSESSEE HAS FILED THE RETURN ELECTRONICALLY ON 29 TH SEPTEMBER, 2009 DECLARING TOTAL INCOME OF RS. 75,69,646/-. THE CASE WAS SELECTED FOR SCRUTINY AS SESSMENT AND A NOTICE U/S. 143(2) WAS ISSUED ON 25 TH AUGUST, 2010. LD. AO HAS PASSED THE ASSESSMENT ORDER ON 29 - 12-2011. HE DETERMINED THE TAXABLE OF THE ASSESSEE AT RS. 6,36,45,138/-. THE LD. AO HAS MADE TWO ADDITIONS NAMELY (A) GP ADDITION AND (B) ADDITION ON ACCOUNT OF UNACCOUNTED PURCHASES. IN THE CASE OF YASHSHVI RASAYAN PVT LTD LD. ALSO, AO HAS MADE ADDITION MAINLY ON ACCOUNT OF SUPPRESSION OF U NACCOUNTED PURCHASES, DISALLOWANCE OF DEPRECATION AND UNACCOUN TED JOB WORK RECEIPT. THESE ADDITIONS HAVE BEEN CHALLENGED BEFORE LD. FIR ST APPELLATE AUTHORITY BY BOTH THE ASSESSEES. HOWEVER LD. COMMISSIONER CON CURRED WITH THE FINDING OF AO WITHOUT MAKING ANY ELABORATE DISCUSSI ON ON EACH ISSUE. 5. LD. COUNSEL OF THE ASSESSEE AT THE VERY OUTSET S UBMITTED THAT ASSESSEE HAS APPLIED FOR ADJOURNMENT BUT LD. COMMIS SIONER REJECTED THE APPLICATION FOR ADJOURNMENT AND DECIDED THE APPEALS ON MERIT. HE PRAYED THAT IMPUGNED ORDER BE SET ASIDE AND THE ISSUES BE RESTORED TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION AFTER PROVIDING APPR OPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. LD. DR ON THE OTHER HAND TOOK US THROUGH THE OBS ERVATIONS OF LD. COMMISSIONER IN PARA 2 ON PAGE 2. HE POINTED OUT THAT LD. COMMISSIONER HAS PROVIDED DUE OPPORTUNITY OF HEARING TO THE ASSE SSEE. THE REPRESENTATIVE OF THE ASSESSEE, SHRI HIREN DIWAN SO UGHT ADJOURNMENT. LD. CIT(A) HAS OBSERVED THAT REPRESENTATIVE OF THE ASSE SSEE IS A HABITUAL ABSENTEE. MERELY BY FILING ADJOURNMENT APPLICATION DOES NOT MEAN THAT HEARING WILL BE AUTOMATICALLY ADJOURNED ON THE ASKI NG OF THE ASSESSEE. SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 5 ACCORDING TO THE DR, THERE IS NO JUSTIFICATION IN S ETTING ASIDE THE ORDER OF THE LD. CIT(A) IN BOTH THE APPEALS. 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. BEFORE WE EMBARK UPON AN INQUIRY, WHETHER PROPER OPPORTUNITY OF HEARING WAS GRANTED OR NOT, AND ORDE R OF CIT(A) ON THIS ISSUE COULD BE UPHELD OR NOT. WE DEEM IT PROPER TO TAKE NOTE OF THE PROVISIONS CONTEMPLATING THE MANNER, AN APPEAL IS T O BE DISPOSED OF BY THE LD. CIT(A). IN THIS RESPECT, IT IS PERTINENT TO TA KE NOTE OF SECTION 250 SUB- SECTION 6 WHICH READS AS UNDER:- (1) THE COMMISSIONER (APPEALS) SHALL FIX A DAY AND PLACE FOR THE HEARING OF THE APPEAL, AND SHALL GIVE NOTICE OF THE SAME TO THE APPELLANT AND TO THE ASSESSING OFFICER AGAINST WHOS E ORDER THE APPEAL IS PREFERRED. (2) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX (3)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX (4)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX (5)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSI NG OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A)XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX 8. A BARE PERUSAL OF THIS SECTION WOULD INDICATE TH AT LD. COMMISSIONER HAS TO STATE THE POINTS FOR DETERMINATION IN AN APP EAL AND THEREAFTER HE HAS TO ASSIGN THE REASONS IN SUPPORT OF HIS CONCLUSION. WE FIND THAT ON EVERY ISSUE THE FINDING OF THE LD. FIRST APPELLATE AUTHOR ITY IS VERBATIM. FOR EXAMPLE, IN GROUND NO. 1 IN THE CASE OF H.L. EQUIPM ENT, ASSESSEE HAS SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 6 CHALLENGED REJECTION OF BOOKS OF ACCOUNTS BY THE AO U/S. 145(3) OF THE INCOME TAX ACT. 9. IN THE CASE OF YASHSHVI RASAYAN PVT LTD VERBATIM SIMILAR OBSERVATION HAS BEEN MADE. IN THE FIRST GROUND OF APPEAL, ASSESSEE HAS CHALLENGED REJECTION OF BOOKS OF ACCOUNTS U/S. 145( 3) AND THE LD. COMMISSIONER HAS RECORDED THE FINDING IN PARA 5.2. THE FINDING RECORDED BY LD. CIT(A) READS AS UNDER:- 5.2 DECISION:- I HAVE SPARED MY THOUGHTFUL CONSIDE RATION TO THE OBSERVATION OF THE AO IN THE ASSESSMENT ORDER. NO SUBMISSION WAS MADE BEFORE ME INSPITE OF SEVERAL OPPORTUNITIES GIV EN TO THE APPELLANT. IN THE ABSENCE OF ANY REBUTTAL FROM THE APPELLANT IN THIS MATTER, I AM CONSTRAINED TO AGREE WITH THE FINDING OF THE AO. THIS GROUND IS ACCORDINGLY DISMISSED. IT IS TO BE NOTED THAT THE RETURNS WERE FILED IN S EPTEMBER, 2009. NOTICE U/S. 143(2) WAS ISSUED ON 25 TH AUGUST, 2010. THE PROCEEDING APPEARS TO HAVE REMAINED DORMANT. THE NOTICE U/S. 142(1) REQU IRING THE ASSESSEE TO SUBMIT DETAIL WAS ISSUED ON 09-11-2011 FIXING THE H EARING ON 22 ND NOVEMBER, 2011. THE CASE WAS RE-FIXED ON 29-11-201 1. IT APPEARS THAT THERE WAS A SURVEY IN THE CASE OF YASHSHVI RASAYAN PVT LTD ON 29-09- 2008 AND THE AO CONFRONTED THE ASSESSEE WITH THE OU TCOME OF THE SURVEY MATERIAL. BUT HE HAS GRANTED LESS THAN ONE MONTH T IME TO COLLECT THE INFORMATION AND PRODUCE THEM BEFORE HIM. EFFECTIV ELY, HE HAS STARTED THE ASSESSMENT PROCEEDINGS AT THE END OF NOVEMBER, 2011 AND PASSED THE ASSESSMENT ORDER AT THE END OF DECEMBER, 2011 IN BO TH THE CASES. THE SETTING OF ALL THESE FACTORS AS A WHOLE GOAD US TO OBSERVE THAT PROPER AND EFFECTIVE OPPORTUNITY OF HEARING HAS NOT BEEN GRANT ED TO THE ASSESSEE. LD FIRST APPELLATE AUTHORITY HAS NOT RE-APPRECIATED TH E MATERIAL ALREADY AVAILABLE ON RECORD. IN AN APPELLATE PROCEEDING, I T IS NOT THE CASE THAT SOMETHING NEW IS TO BE PRODUCED. BECAUSE WITHOUT L EAVE OF THE APPELLATE SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 7 AUTHORITY, NO ADDITIONAL EVIDENCE CAN BE FOUND. THE MATERIAL ALREADY AVAILABLE ON RECORD HAS TO BE RE-APPRECIATED, FROM THE FINDING OF CIT(A) EXTRACTED (SUPRA), IT IS NOT DISCERNABLE THAT HE HA S APPRECIATED THE MATERIAL. TO SOME EXTENT, WE AGREE WITH LD. DR ALSO THAT ASSE SSEE FAILED TO PROPERLY TAKE CARE OF ITS INCOME TAX PROCEEDING. TH E ADJOURNMENT CANNOT BE GRANTED MERELY AT THE ASKING OF THE ASSESSEE BUT WHEN WE WEIGH THE ALLEGED NEGLIGENT CONDUCT OF THE ASSESSEE VIS--VIS PUNISHMENT IN THE SHAPE OF TAX LIABILITY THEN THE SCALE WOULD TILT IN FAVOUR OF THE ASSESSEE BECAUSE THE NEGLIGENCE AT THE END OF ASSESSEE IS NO T OF THAT MAGNITUDE WHICH WOULD ENTAIL THE TAX LIABILITY OF THIS MAGNIT UDE. THEREFORE, TAKING INTO CONSIDERATION OVERALL FACTS AND CIRCUMSTANCES, WE D EEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDERS OF THE LD. CIT(A) IN BOTH THE APPEALS AND RESTORE ALL THESE ISSUES TO THE FILE OF FIRST APPEL LATE AUTHORITY FOR RE- ADJUDICATION. WE DIRECT THE ASSESSEE ALSO TO CO-OP ERATE WITH THE LD. CIT(A) AND NOT TO SEEK UNWARRANTED ADJOURNMENTS. I T IS NEEDLESS TO SAY THAT OBSERVATION MADE BY US WILL NOT IMPAIR OR INJU RE THE CASE AND AO WILL NOT CAUSE ANY PREJUDICE TO THE EXPLANATION OF THE A SSESSEE. LD. FIRST APPELLATE AUTHORITY SHALL PROVIDE DUE OPPORTUNITY O F HEARING TO THE ASSESSEE. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE STAY APPLICATIONS ARE DISMISSED BEIN G INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 24-04-2015 SD/- SD/- (ANIL CHATURVEDI) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 24/04/2015 AK SP NOS. 35 & 36/AHD/2015 & I.T.A NOS. 1301 & 13 03 /AHD/2011 A.Y. 2009-10 PAGE NO. YASHASHAVI RASAYAN PVT. LTD VS. JCIT & HL EQUIPMEN TS VS. JCIT RESPECTIVELY 8 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,