Sh. Raghubir Prasad Gupta, Faridabad V. ITO, Faridabad

ITA 1398/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7426 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA SENIOR
• Assessee Lawyers: MRS TRIPTI GOESL ACA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1398/DEL./2014 (ASSESSMENT YEAR : 2006-07) SHRI RAGHUBIR PRASAD GUPTA, VS. INCOME-TAX OFFICER , PROP. AMBICA ROADLINES, WARD 1 (1), 668, SECTOR 16A, FARIDABAD. FARIDABAD. (PAN : AGBPG4378A) (APPELLANT) (RESPONDENT) ASSESSEE BY : MRS. TRIPTI GOESL, ACA REVENUE BY : SHRI F.R. MEENA, SENIOR DR DATE OF HEARING : 02.08.2016 DATE OF ORDER : 24.08.2016 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI RAGHUBIR PRASAD GUPTA (HEREINAF TER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 13.01.2014 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, FARIDABAD Q UA THE ASSESSMENT YEAR 2006-07 ON THE GROUNDS INTER ALIA T HAT :- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN NOT ADMITTING THE ADDITIONAL GROUNDS OF APPEALS RAI SED BY THE ASSESSEE PARTICULARLY WHEN THE SAME WERE PURELY LEGAL ITA NO.1398/DEL./2014 2 IN NATURE AND THAT TOO WITHOUT CONSIDERING ALL THE SUBMISSIONS MADE BY THE ASSESSEE. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING THE ASSESSMENT WHICH WAS WITHOUT PROVIDI NG THE REASONS RECORDED, IN VIOLATION OF THE LAW AND I N VIOLATION THE PRINCIPLES OF NATURAL JUSTICE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, ASSUMPTION OF JURISDICTION BY LD. A.O. AND INITIATION OF THE PROCEEDINGS, BY RECORDING REASONS ON THE BEHEST OF THE AUDITORS, IS BAD IN LAW AND AGAINST T HE FACTS OF THE CASE AND THE ASSESSMENT FRAMED IS ALSO BAD I N LAW AND VOID AB INITIO PARTICULARLY WHEN THERE WAS NO INDEPENDENT APPLICATION OF MIND BY LD. A.O. AND THE STATUTORY CONDITIONS AS MENTIONED IN THE SECTIONS 1 47 TO 151 OF THE ACT HAD NOT BEEN FULFILLED. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING THE ASSESSMENT ORDER EVEN THOUGH LD. A.O . HAS ERRED IN LAW AND ON FACTS IN ISSUING THE NOTICE U/S 143(2) OF THE MORE SO WITHOUT APPLICATION OF MIND. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN UPHOLDING THE ACTION OF THE LD. A.O. IN MAKING AN ADDITION OF RS.22,69,083/- BEING DISALLOWANCE OF EX PENSE U/S 40A(IA) OF THE INCOME TAX ACT, 1961 FOR PAYMENT MADE FOR HIRE CHARGES AND MORE SO WHEN THE AMOUNT H AD ACTUALLY BEEN 'PAID' BY THE ASSESSEE. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN NOT DIRECTING THE LD. A.O. TO DELETE DISALLOWANCES EVEN IN THE CASES WHERE THE ASSESSEE HAD ALREADY DEDUCTED A ND DEPOSITED TDS ON THE IMPUGNED HIRE CHARGES. 7. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT (A) IN CONFIRMING THE ACTION OF L D. A.O IN MAKING THE IMPUGNED ADDITION IS BAD IN LAW A ND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1398/DEL./2014 3 8. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, ALTE R OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL TH E GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. BRIEFLY STATED THE FACTS OF THIS CASE ARE : AO, AFTER NOTICING THAT ASSESSEE HAS DEBITED A SUM OF RS.40,21,884/- O N ACCOUNT OF HIRE CHARGES AND RS.39,709/- ON ACCOUNT OF INTEREST ON LOAN WITHOUT DEDUCTING TDS, AS CONFIRMED IN CAS REPORT, AFTER R ECORDING REASONS, ISSUED NOTICE U/S 148 OF THE INCOME-TAX AC T, 1961 (FOR SHORT THE ACT). NOTICE U/S 142 (1) DATED 25.05.2 011 WAS ISSUED FIXING THE DATE FOR HEARING AS 03.06.2011. ASSESSE E FILED REQUISITE INFORMATION/DETAILS THROUGH SHRI TEJINDER BHARDWAJ, CA WHO ATTENDED PROCEEDINGS FROM TIME TO TIME. 3. DURING THE YEAR UNDER ASSESSMENT, ASSESSEE HIRED TRUCKS FROM MARKET TO RUN FOR HIRING BUSINESS UNDER THE NAME AN D STYLE OF AMBIKA ROADLINES, FARIDABAD OF WHICH HE FAILED TO P RODUCE BOOKS OF ACCOUNTS/BILLS/VOUCHERS. FROM THE PERUSAL OF DE TAILS FILED BY THE ASSESSEE, IT IS NOTICED BY THE AO THAT DURING THE Y EAR UNDER ASSESSMENT, THE ASSESSEE HAS PAID A SUM OF RS.40,21 ,884/- ON ACCOUNT OF HIRE CHARGES BUT NO DETAIL OF TAX AT SOU RCE WAS GIVEN AS PER THE REPORT OF THE CA. AO NOTICED FROM THE DETA ILS / LIST SUPPLIED BY THE ASSESSEE THAT IN CASE OF 19 PARTIES , PAYMENTS OF RS.20,47,183/- ON ACCOUNT OF LORRY HIRE CHARGES EXC EEDING ITA NO.1398/DEL./2014 4 RS.50,000/- A YEAR HAS BEEN MADE BUT WITHOUT DEDUCT ING ANY TAX AT SOURCE. SIMILARLY, IN CASE OF 8 PARTIES, PAYMENT T O THE TUNE OF RS.2,21,900/- HAS BEEN MADE EXCEEDING RS.20,000/- W HERE NO TDS WAS DEDUCTED 4. AO CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE AFORESAID PAYMENT PAID TO THE VARIOUS PARTIES BE NO T ADDED TO HIS INCOME AS PER SECTION 40A(IA) OF THE ACT. ASSESSEE FILED REPLY. FINDING THE EXPLANATION FURNISHED BY THE ASSESSEE N OT TENABLE, AO CAME TO THE CONCLUSION THAT SINCE THE ASSESSEE HAS FAILED TO DEDUCT THE TDS ON LORRY HIRE CHARGES AMOUNTING TO RS.22,69 ,083/- AS REQUIRED U/S 194A OF THE ACT, AMOUNT OF RS.22,69,08 3/- CLAIMED AS DEDUCTION IN THE INCOME & EXPENDITURE ACCOUNT HAS B EEN DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE AND ASSESSED THE TOTAL INCOME AT RS.24,45,000/-. 5. ASSESSEE CARRIED THE MATTER BY CHALLENGING THE A SSESSMENT ORDER BEFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEAL. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1398/DEL./2014 5 7. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE THAT APPLICATION DATED 13.12.2013 MOVED BY THE ASSESSEE SEEKING TO RAISE ADDITIONAL GROUNDS BEFORE THE FIRST APPELLATE AUTHORITY HAS BEEN ARBITRARILY REJECTED W HICH IS NECESSARY FOR JUST DECISION OF THE CASE. 8. PERUSAL OF PARA 3 OF THE IMPUGNED ORDER APPARENT LY GOES TO PROVE THAT THE LD. CIT (A) HAS REJECTED THE APPLICA TION MOVED BY THE ASSESSEE TO RAISE ADDITIONAL GROUND BY DISCUSSI NG PLETHORA OF JUDGMENTS BUT WITHOUT ADJUDICATING THE CORE ISSUE T HAT, AS TO WHETHER ADDITIONAL GROUNDS SOUGHT TO BE RAISED BY T HE ASSESSEE ARE NECESSARY FOR COMPLETE ADJUDICATION OF THE CONTROVE RSY AT HAND . 9. BARE PERUSAL OF THE ADDITIONAL GROUNDS NOW SOUGH T TO BE RAISED BY THE ASSESSEE GOES TO PROVE THAT THE ADDIT IONAL GROUNDS ARE APPARENTLY LEGAL GROUNDS AND WITHOUT DECIDING THE S AME CORE CONTROVERSY AGITATED BY THE ASSESSEE BEFORE THE FIR ST APPELLATE AUTHORITY COULD NOT HAVE BEEN ADJUDICATED UPON. UN LESS THE APPELLATE AUTHORITY IS NOT IN A POSITION TO DECIDE THE ISSUE, AS TO WHETHER THE AO HAS LEGALLY AND VALIDLY ASSUMED THE JURISDICTION TO REOPEN THE ASSESSMENT, THE REMAINING GROUNDS AGITATED AND DISPOSED OF BY CIT (A) ARE OTHERWISE SECONDARY IN T HIS CASE. 10. SO, WITHOUT ENTERING INTO THE MERITS OF THE CAS E, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITIONAL GROUNDS SOUGHT TO BE RAISED BY ITA NO.1398/DEL./2014 6 THE ASSESSEE BEFORE LD. CIT (A) BEING LEGAL IN NATU RE ARE LIABLE TO BE ALLOWED AND FOR THAT PURPOSE, THE MATTER IS REQUIRE D TO BE SET ASIDE TO RESTORE THE SAME FOR AFRESH DECISION. CONSEQUEN TLY, IMPUGNED ORDER IS SET ASIDE AND THE FILE IS RESTORED TO CIT (A) TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 10. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, THE P RESENT APPEAL IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF AUGUST, 2016. SD/- SD/- (J.S. REDDY) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF AUGUST, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II, FARIDABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.