CVS Granites, Madurai V. ITO Ward 2(1), Madurai

ITA 1319/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2643 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 30-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARV SREENIVASAN JCIT
• Assessee Lawyers: S SANKARALINGAM CITRETD
• Keywords: Retrospective amendment; Set aside
• Section: 40(a)(ia); 69B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI . . , . , BEFORE SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.1319/CHNY/2019 /ASSESSMENT YEAR: 2012-13 M/S.CVS GRANITES, 15B, AYYANARKOIL STREET, ANUPPANADY, MADURAI-625 009. VS. THE INCOME TAX OFFICER, WARD-2(1), MADURAI. [PAN: AAEFC 9589 N] ( # /APPELLANT) ( $%# /RESPONDENT) # & / APPELLANT BY : MR.S.SANKARALINGAM, CIT(RETD.) $%# & /RESPONDENT BY : MR. AR.V.SREENIVASAN, JCIT & /DATE OF HEARING : 09.07.2019 & /DT. OF PRONOUNCEMENT : 26.08.2019 / O R D E R PER SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER : THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-2, MADURAI, IN ITA NO.65/20 15-16 DATED 05.03.2019 FOR THE AY 2012-13. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO DEFEND THE CASE OF THE ASS ESSEE, THEREFORE, ITA NO.1319 /CHNY/2019 :- 2 -: PLEADED FOR ONE MORE OPPORTUNITY. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1) THE LEARNED CIT( APPEALS) FAILED TO FOLLOW THE MAN DATE OF SECTION 250(6) AS HE DID NOT STATE THE POINTS FOR DETERMINATION AND THE DECISION THEREON AND THE REASON FOR THE DECISION IN THE IMPUGNED ORDER. 2) THE LEARNED CIT (APPEALS) OUGHT TO HAVE VERIFIED T HE RECORDS OF THE ASSESSEE ON THE CLAIM OF THE ASSESSEE THAT INTEREST WAS NOT CLAIMED AS DEDUCTION AND OUGHT TO HAVE CAUSED FURTHER ENQUIRY ON THE CLAIM OF THE ASSESSEE THAT T HERE WAS DUPLICATE REPORTING OF SALES IN THE SALES TAX RETURN. 3) THE LEARNED CIT (APPEALS) FAILED TO NOTE THAT UNDE R REPORTING OF PURCHASES IN THE PROFIT AND LOSS ACCOUNT WILL ONLY RESULT IN OVER REPORTING OF PROFIT AN ADDITION UNDER SECTION 69B CANNOT BE MADE UNLESS THE ASSESSING OFFICER PROVE T HAT PAYMENT WAS MADE OUTSIDE THE BOOKS OF ACCOUNTS FOR SUCH ALLEGED EXCESS PURCHASES . 4) THE LEARNED CIT (APPEALS) ERRED IN DISMISSING THE APPEAL WITHOUT EXAMINING THE FACTS SURROUNDING EACH GROUND OF APPEAL EVEN THOUGH THE A PPEAL WAS TO BE DECIDED ON EX-PARTE BASIS. 5) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) IN ANY CASE OUGHT TO HAVE RESTRICTED THE DISALLOWANCE OF INTEREST TO 30% AS THE AMENDMENT MADE IN SECTION 40(A)(IA) WITH EFFECT FROM 01.04.2015 WILL HAVE RETROSPECTIVE EFFECT. 6) THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, MODI FY OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 3. BRIEF FACTS OF THE CASE OF THE ASSESSEE ARE THAT T HE ASSESSEE FILED ITS RETURN OF INCOME FOR THE AY 2012-13 ON 01.10.2012 D ECLARING THE TOTAL INCOME OF RS.2,53,180/- AND THE SAME WAS PROCESSED U/S.143(1). SUBSEQUENTLY, THIS CASE WAS SELECTED FOR SCRUTINY T HROUGH CASS. THEN THE ASSESSMENT WAS COMPLETED WITH THE ADDITION OF RS.16 ,52,240/- U/S.69B AND THE DISALLOWANCE OF EXPENSE OF RS.4,95,419/- U/ S.40(A)(IA). 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS PASSED AN EX-PARTE ORDER DATED 20 .02.2019. 5. ON BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPE AL BEFORE THE TRIBUNAL. AT THE OUTSET, THE LD.COUNSEL FOR THE AS SESSEE SUBMITTED THAT ITA NO.1319 /CHNY/2019 :- 3 -: THE LD.CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO SUBS TANTIATE THE CASE OF THE ASSESSEE. THEREFORE, HE PLEADED FOR ONE MORE O PPORTUNITY TO SUBSTANTIATE THE ASSESSEES CASE. 6. PER CONTRA, THE LD.DR SUBMITTED THAT SIX ADJOURNME NTS WERE GRANTED BUT THE ASSESSEE FAILED TO APPEAR BEFORE THE LD.CIT (A). THEREFORE, THE LD.CIT(A) PASSED AN EX-PARTE ORDER. THEREFORE, THE ORDERS PASSED BY THE LD.CIT(A) BE CONFIRMED. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERI ALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. 8. UPON PERUSAL OF THE ORDER PASSED BY THE LD.CIT(A) DATED 20.02.2019, THE LD.CIT(A) HAS NOT PASSED THE ORDER ON MERITS AND HE HAS NOT ADJUDICATED THE ISSUES RAISED BY THE ASSESSEE. BUT SIMPLY, HE PASSED AN ORDER SAYING THAT THERE HAS BEEN CONSISTENT NON -COMPLIANCE FOR THE OPPORTUNITIES GIVEN DURING THE APPELLATE PROCEEDING S AS DETAILED IN PARAGRAPH 4 ABOVE. THERE IS NOTHING ON RECORD TO J USTIFY ANY OF THE GROUNDS OF THE APPEAL OF THE ASSESSEE. HENCE, I AM CONSTRAINED TO DISMISS ALL THE GROUNDS OF THE APPEAL. 9. CONSIDERING THE ABOVE FINDINGS OF THE LD.CIT(A), W E ARE OF THE FIRM OPINION THAT, IN THE INTEREST OF JUSTICE, THE ASSES SEE HAS TO BE GIVEN ONE MORE OPPORTUNITY TO SUBSTANTIATE THE CASE OF THE AS SESSEE. WE, THEREFORE, ITA NO.1319 /CHNY/2019 :- 4 -: SET ASIDE THE ORDERS PASSED BY THE LD.CIT(A) AND RE MIT THESE ISSUES BACK TO THE FILE OF THE LD.CIT(A) FOR CONSIDERATION AFRE SH IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE LD.C IT(A) AND ASSESSEE SHOULD NOT ASK ADJOURNMENTS EXCEPT FOR JUST CAUSE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 26 TH DAY OF AUGUST, 2019, IN CHENNAI. SD/- SD/- ( . ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( - . . . / ) (DUVVURU R.L. REDDY) /JUDICIAL MEMBER /CHENNAI, 1 /DATED: 26 TH AUGUST, 2019. TLN & $23 43 /COPY TO: 1. # /APPELLANT 4. 5 /CIT 2. $%# /RESPONDENT 5. 3 $ /DR 3. 5 ( ) /CIT(A) 6. /GF