Shri Vikas Agarwal, Jaipur V. Income Tax Officer, Ward-4(3), Jaipur

ITA 140/JPR/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0179 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Keywords: Depreciation; Transfer pricing; Opportunity of being heard; International transaction
• Section: 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HE B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 140/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 SH. VIKAS AGARWAL E-236 MURALIPURA SCHEME JAIPUR RAJ. 332039 CUKE VS. THE ITO, WARD 4(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGVPA1080H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K. C. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/03/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 29/03/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 27.12.2018 WHEREIN THE ASSESSEE HAS TAK EN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED ASSESSMENT ORDER U/S 144C RWS 143 (3) DATED 18.11.2017 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KI NDLY BE QUASHED. 2. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN PASSING THE EXPARTY ORDER WITHOUT PROVI DING THE ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE IN THE GROSS BREACH OF LAW. HENCE THE ENTIRE ADDITION AND DISALL OWANCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE ITA NO. 140/JP/2019 SH. VIKAS AGARWAL, JAIPUR VS. ITO, JAIPUR 2 PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 3. RS. 29,40,632/- THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 29,40,632/- MADE BY THE AO OR TPO ON ACCOUNT OF ARMS LENGTH PRI CE IN RESPECT OF INTERNATIONAL TRANSACTION IN THE VALUE OF SPECIFIED DOMESTIC TRANSACTION ENTERED INTO BY THE ASSESSEE. HENCE THE ADDITION SO MADE BY THE LD. AO OR TPO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOT ALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 4. RS. 49,324/-: THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANC E OF RS. 49,324/- CLAIMED ON ACCOUNT OF INTEREST ON CAR LOAN. HENCE T HE DISALLOWANCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 5. RS. 40,557/-: THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANC E OF RS. 40,557/- ON ACCOUNT OF DEPRECIATION ON CAR. HENCE THE DISALLOWA NCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOT ALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 6. THE LD. AO HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING INTEREST U/S 234 A,B,C AND D AS AL SO WITHDRAWING INTEREST U/S 244A. THE APPELLANT TOTALLY DENIES IT LIABILITY OF CHARGING OF ITA NO. 140/JP/2019 SH. VIKAS AGARWAL, JAIPUR VS. ITO, JAIPUR 3 ANY SUCH INTEREST. THE INTEREST, SO CHARGED, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED IN FULL. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE FIRST NOTICE RECEIVED BY THE ASSESSEE FROM THE OFFICE OF CIT(A) FOR THE HEARING SCHEDULED ON 26.10.2018 WHICH HAS BEEN SENT TO THE LOCAL COUNSEL OF THE ASSESSEE, HOWEVER, DUE TO HEAVY PRESSURE OF TAX AUD IT THE LAST DATE BEING 31ST OCT, HE HAS FORGOTTEN TO INFORM THE AR W HO HAS TO REPRESENT THE MATTER BEFORE THE LD CIT(A). THEREAFTER, IN RE SPECT OF THE SECOND NOTICE FOR HEARING SCHEDULED ON 11.12.2018, THE ASS ESSEE HAS INFORMED THE AR VERBALLY THROUGH THE LOCAL COUNSEL AND THE L D AR WAS UNDER THE IMPRESSION THAT THE APPEAL IS FIXED BEFORE THE LD. CIT(A)-2 JAIPUR, HENCE HE HAS SENT HIS STAFF TO THE OFFICE OF CIT(A)-2, JA IPUR FOR FILING THE ADJOURNMENT APPLICATION AND SEEKING THE ADJOURNMENT IN THE MATTER. BUT THE OFFICE OF CIT(A)-2 HAS TOLD THAT THAT THERE IS NO APPEAL OF THIS NAME IN THE FIXATION DIARY AND THE ADJOURNMENT APPLICATI ON WAS NOT RECEIVED. IT WAS FURTHER SUBMITTED THAT NO NOTICE FOR THE HEA RING SCHEDULED ON 12.11.2018 AND 27.12.2018 HAS COME TO THE NOTICE OF THE ASSESSEE. FURTHER THE APPEAL HAS BEEN TRANSFERRED FROM THE OF FICE OF THE CIT(A)-2, JAIPUR TO CIT(A)- AJMER AND THIS FACTS WAS NOT IN T HE NOTICE OF THE ASSESSEE OR THE LD AR. FURTHER, IN FORM 35, THE ADD RESS FOR COMMUNICATION HAS BEEN STATED AS THAT OF THE AR HOW EVER NO NOTICE AT THE COMMUNICATION ADDRESS HAS BEEN RECEIVED RATHER THE TWO NOTICES HAVE BEEN RECEIVED DIRECTLY BY THE ASSESSEE BUT THE MATTER COULDNT BE REPRESENTED ON THE SCHEDULED DATE AS SUBMITTED EARL IER. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE/AR CAME TO KNOW ABOUT T HE TRANSFER OF APPEAL FROM CIT(A)-2, JAIPUR TO CIT(A)- AJMER ONLY AFTER RECEIVING THE ORDER FROM CIT(A)- AJMER. IT WAS ACCORDINGLY SUBMIT TED THAT THE MATTER COULDNT BE REPRESENTED BEFORE THE LD CIT(A) FOR TH E AFORESAID REASONS ITA NO. 140/JP/2019 SH. VIKAS AGARWAL, JAIPUR VS. ITO, JAIPUR 4 AND IN THE INTEREST OF JUSTICE, THE MATTER MAY BE R ESTORED TO THE FILE OF THE LD CIT(A) FOR HEARING ON MERITS. 3. PER CONTRA, THE LD. DR IS HEARD WHO HAS SUBMITT ED THAT THE ASSESSEE HAS BEEN GRANTED SUFFICIENT OPPORTUNITY BY THE LD. CIT( A). HENCE, THE ORDER OF LD. CIT(A) SHOULD BE SUSTAINED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED THAT THE ASSESSEE HAS FILED THE APPEAL BEFORE THE LD CIT(A)-2, JAIPUR AND THEREAFTER, THE SAME HAS BEEN TRANSFERRED TO THE LD CIT(A), AJMER VIDE ORDER OF THE PR.CIT DATED 25.09. 2018. THE LD AR HAS MADE A STATEMENT AT THE BAR THAT THE ASSESSEE AS WELL TH E AR WHOSE ADDRESS HAS BEEN STATED AS COMMUNICATION ADDRESS IN FORM 35 WER E NOT AWARE OF SUCH TRANSFER OF THE APPEAL FROM LD CIT(A)-2, JAIPUR TO THE LD CIT(A), AJMER AND ONLY AFTER, THE IMPUGNED ORDER WAS RECEIVED, THE ASSESSE E AND THE AR CAME TO KNOW ABOUT THE TRANSFER OF APPEAL MATTER. THE LD D R SUBMITTED THAT DUE TO REDISTRIBUTION OF WORK LOAD, THE APPEAL MATTERS ARE GENERALLY TRANSFERRED FROM ONE CIT(A) TO ANOTHER CIT(A) AND IN THE INSTANT CAS E, THE MATTER WAS TRANSFERRED TO CIT(A) AJMER AND FOR THE PURPOSES OF DISPOSING OFF THE MATTER, THE ASSESSEE DOESNT HAVE TO TRAVEL TO AJMER RATHER A CAMP OFFICE IS SET UP AT JAIPUR ITSELF WHERE THE CIT(A) AJMER HEAR THE MATTE RS. TO OUR MIND, IT IS A WELCOME STEP ON PART OF THE DEPARTMENT IN TERMS OF RE-BALANCING THE WORKLOAD OF APPEAL MATTERS AMONG VARIOUS CIT(A) AND AT THE S AME TIME, IT IS ESSENTIAL THAT THE ASSESSEE BE INFORMED ABOUT SUCH JURISDICTI ON CHANGES IN A TIMELY MANNER TO MAKE IT MORE EFFICIENT AND EFFECTIVE. IN THE PRESENT CASE, APPARENTLY THE ASSESSE OR THE LD AR ARE NOT AWARE O F SUCH JURISDICTION CHANGE. FURTHER, GIVEN THAT THE MATTER HAS NOT BEEN DECIDED ON MERITS, WE BELIEVE THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ASSES SEE DESERVE ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE LD CIT (A). IN THE RESULT, WE SET- ITA NO. 140/JP/2019 SH. VIKAS AGARWAL, JAIPUR VS. ITO, JAIPUR 5 ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO DE CIDE THE APPEAL ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29/03/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/03/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VIKAS AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 4(3), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 140/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR