M/s Trimurti Constructions Developers & Builders, New Delhi V. ACIT, New Delhi

ITA 1321/DEL/2011

• Counselvise Citation: 132120114 RSA 2011
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 08-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 15-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL GAUTAM SENIOR
• Assessee Lawyers: NAVEEN UPADHYAYA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.1321/DEL./2011 (ASSESSMENT YEAR : 2007-08) M/S. TRIMURTI CONSTRUCTIONS DEVELOPERS VS. ACIT, CI RCLE 38 (1), & DEVELOPERS, NEW DELHI. C/O NAVEEN UPADHYAYA & ASSOCIATES, CHARTERED ACCOUNTANTS, E 186 (BASEMENT), KRISHNA MARKET, LAJPAT NAGAR 1, NEW DELHI 110 024. (PAN : AAEFT2310A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NAVEEN UPADHYAYA, ADVOCATE REVENUE BY : SHRI SUNIL GAUTAM, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE CIT (APPEALS)-XXVIII, NEW DELHI DATED 20.12.2010 FOR AS SESSMENT YEAR 2007-08. 2. THE ASSESSEE IS A PARTNERSHIP FIRM. THE RETURN O F INCOME WAS FILED ON 14.11.2007 DECLARING INCOME AT RS.77,33,463/-. ASSE SSING OFFICER TRIED TO SEND NOTICES U/S 143(2) AT THREE KNOWN ADDRESSES THROUGH INSPECTOR. WHEN ASSESSEE WAS NOT AVAILABLE ON THESE ADDRESSES THE SERVICE WA S MADE THROUGH AFFIXTURE. THE ASSESSING OFFICER MADE BEST JUDGMENT ASSESSMENT U/S 144 OF THE INCOME- TAX ACT, 1961 AND ESTIMATED THE NET PROFIT RATE @ 8 % ON THE GROSS RECEIPTS OF ITA NO.1321/DEL./2011 2 RS.15,30,25,096/- AND ASSESSED THE INCOME AT RS.1,2 2,42,008/-. THE CIT (A) CONFIRMED THE ADDITION BY HOLDING THAT ASSESSEE WAS GIVEN VARIOUS OPPORTUNITIES BY ASSESSING OFFICER. ASSESSEE REPEAT EDLY FAILED TO COMPLY WITH THE STATUTORY NOTICES ISSUED BY THE ASSESSING OFFIC ER. THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNTS AND BILLS AND VOUCHERS. T HE BOOK RESULTS SHOWN REMAINED UNSUBSTANTIATED. CIT (A) UPHELD THE ORDER OF ASSESSING OFFICER MADE U/S 144 OF THE ACT FOR ESTIMATING THE INCOME @ 8% O F THE GROSS RECEIPTS. 3. BEFORE US, THE LD. AR SUBMITTED THAT THE ASSESSM ENT WAS MADE ON 15.12.2009. THE ASSESSING OFFICER HIMSELF HAS WRITT EN IN HIS ORDER THAT IT WAS A TIME BARRING CASE, THEREFORE, COMPLETED THE ASSESSM ENT U/S 144 OF THE INCOME- TAX ACT, 1961. LD. AR SUBMITTED THAT THE PRINCIPAL & MANAGING PARTNER OF THE FIRM, SHRI R.R. KUMAR WAS UNDER COURT ARREST DURING THE PERIOD 30.05.2009 TO 31.01.2010 IN A CIVIL MATTER RELATING TO THE WORK C ONTRACT AWARD TO THE FIRM. SHRI R.R. KUMAR GOT BAIL ONLY ON 01.02.2010. THEREF ORE, NOTICES ISSUED BY ASSESSING OFFICER COULD NOT BE COMPLIED WITH. THERE FORE, THE LD. AR ALSO PRAYED THAT THERE WAS SUFFICIENT AND REASONABLE CAU SE FOR NON-COMPLIANCE OF NOTICES ISSUED BY ASSESSING OFFICER AND THE ASSESSE E MAY BE PROVIDED AN OPPORTUNITY TO SUBSTANTIATE THE RETURN OF INCOME BE FORE THE ASSESSING OFFICER. HE PRAYED TO SET ASIDE THE ISSUE TO THE FILE OF ASS ESSING OFFICER. 4. ON THE OTHER HAND, LD. DR OPPOSED THIS PROPOSITI ON OF LD. AR AND PLEADED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES, THEREFORE, NO OPPORTUNITY SHOULD BE PROVIDED. ITA NO.1321/DEL./2011 3 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE HA VE ALSO PERUSED THE MATERIAL AVAILABLE IN THE PAPER BOOK. THE RETURN OF INCOME WAS FILED ON 14.11.2007 DECLARING POSITIVE INCOME OF RS.72,33,46 3/-. THE ASSESSMENT WAS COMPLETED ON 15.12.2009. THE MANAGING PARTNER OF TH E FIRM, SHRI R.R. KUMAR WAS UNDER THE COURT ARREST DURING THE PERIOD 30.05. 2009 TO 31.01.2010. THEREFORE, IT IS CLEAR THAT THE ASSESSMENT PROCEEDI NGS TOOK PLACE DURING THE PERIOD WHEN THE MANAGING PARTNER OF THE FIRM WAS IN JAIL. CONSIDERING ALL THESE FACTS AND IN THE INTEREST OF JUSTICE AND EQUITY, WE FIND IT APPROPRIATE TO REMAND THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING DE NOVO AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF AUGUST, 2013. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 22 ND DAY OF AUGUST, 2013 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT