M/s Pioneer High Grade Homes (P) Ltd., Chandigarh V. ACIT, C-4(1), Chandigarh

ITA 1458/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0664 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G.S. PHANI KISHORE
• Keywords: Depreciation; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 1458/CHD/2018 (ASSESSMENT YEAR : 2015-16) M/S PIONEER HIGH GRADE HOMES VS. ACIT, C-4(1) PRIVATE LTD. CHANDIGARH CHANDIGARH PAN NO. AAFCP0787K (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. G.S. PHANI KISHORE, CIT DR DATE OF HEARING : 28/03/2019 DATE OF PRONOUNCEMENT : 28/03/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 25/07/2018 OF LD. CIT(A)-2, CHANDIGARH. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THE PRESEN T APPEAL: 1. THAT LEARNED CIT(A) HAS GROSSLY ERRED IN LAW IN CON FIRMING THE ADDITION MADE BY LEARNED ASSESSING OFFICER. ADDITION CONFIRMED IS IL LEGAL AND BAD IN LAW. 2. THAT NO NOTICE OF HEARING OF APPEAL WAS SERVED ON T HE ASSESSEE. APPEAL HAS BEEN DECIDED EX-PARTE. EVEN APPELLATE ORDER HAS NOT BEEN SERVED ON THE ASSESSEE AND HAS BEEN DOWNLOADED FROM E-FILLING PORTAL. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D ASSESSING OFFICER HAS GROSSLY ERRED IN LAW IN HOLDING THAT FOLLOWING EXPENSES OF RS. 12617786/- ARE TO BE CAPITALIZED AND INCLUDED IN COST OF WIP. CONCLUSIONS DRAWN BY L EARNED ASSESSING OFFICER ARE ILLEGAL AND BAD IN LAW. INDIRECT ADMINISTRATIVE EXPENSES 2955663 LOSS ON SALE OF FIXED ASSETS 210216 INDIRECT FINANCE COST 494904 INDIRECT DEPRECIATION 2066542 INDIRECT EMPLOYEE BENEFIT 3438740 INDIRECT SELLING EXPENSES 3451721 TOTAL 12617786 2 4. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D ASSESSING OFFICER HAS GROSSLY ERRED IN LAW IN RESTRICTING DEPRECIATION TO RS. 777 03/- AS AGAINST CLAIMED AT RS. 864884/- 5. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D ASSESSING OFFICER HAS GROSSLY ERRED IN LAW IN BRINGING TO TAX RS. 77703/- ALLEGED TO BE INTEREST RECEIVED ON FDR. 6. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AME ND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 3. VIDE GROUND NO. 2 THE GRIEVANCE OF THE ASSESSEE RELATES TO THE UPHOLDING OF THE ASSESSMENT ORDER WITHOUT GIVING PROPER AND R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30/09/2015 DECLARING LOSS OF RS. 99,24 ,233/-. HOWEVER, THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U NDER SECTION 143(3) OF THE ACT AT NIL INCOME AND ALSO DID NOT AL LOW CARRY FORWARD OF THE CURRENT YEAR LOSS. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO UPHELD THE ACTION OF THE ASSESSING OFFICER AND DISM ISSED THE APPEAL OF THE ASSESSEE BY PASSING THE EX-PARTE ORDER. 6. NOW THE ASSESSEE IS IN APPEAL. 7. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE THEREFORE THE APPEAL IS DECIDED EX-PARTE. THE LD. CIT DR SUBMITTED THAT THE ASSESSEE WAS NON COOPERATIVE AND DID NOT A PPEAR BEFORE THE LD. CIT(A), SO, THERE WAS NO ALTERNATIVE EXCEPT TO DECI DE THE APPEAL EXPARTE. THEREFORE THE ADDITION MADE BY THE ASSESSING OFFICE R AND SUSTAINED BY THE LD. CIT(A) WAS FULLY JUSTIFIED. 8. I HAVE CONSIDERED THE SUBMISSION OF THE LD. CIT DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS AN ADMITTED FACT THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) PAS SED THEIR RESPECTIVE ORDERS EXPARTE. IN THE IMPUGNED ORDER THE LD. CIT(A) HAS M ENTIONED THAT THE NOTICE FOR HEARING WAS ISSUED ON 03/07/2018 TO THE ASSESSEE FO R HEARING ON 25/07/2018, HOWEVER NOTHING IS BROUGHT ON RECORD TO SUBSTANTIAT E THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT N OBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTEM . WE THEREFORE CONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO S ET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 3 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/03/2019). SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 28/03/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR