M/s. Exl Careers, Meerut V. ITO, Meerut

ITA 1473/DEL/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6344 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARAT BHUSAN GARG
• Assessee Lawyers: VINOD KUMAR GOYAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 142(1); 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCHES, NEW DELHI (CIRCUIT BENCH AT MEERUT) BEFORE : SHRI . I.C. SUDHIR, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1473/DEL/2015 (ASSESSMENT YEAR: 2009 - 10) EXL CAREERS, C/O. VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT PAN:AABFE6558N VS. ITO, WARD - 1(2), MEERUT (APPELLANT) (RESPONDENT) DATE OF HEARING 18/12/2015 DATE OF PRONOUNCEMENT 15 / 03 /2016 ASSESSEE BY: SH. VINOD KUMAR GOYAL, ADV REVENUE BY: SH. BHARAT BHUSAN GARG, SR. DR O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 06.02.2015 OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - MEERUT FOR THE ASSESSMENT YEAR 2009 - 10 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THAT NO NOTICE U/S 143(2) AND 142(1) WAS SERVED UPON THE ASSESSEE AND ASSESSMENT FRAMED ON INCORRECT ADDRESS. HENCE, ASSESSMENT U/S 144 IS BAD IN LAW AND CIT ( A) IS ALSO IN ERROR CONFIRMING THE ORDER U/S 144 OF I.T. ACT, 1961. THEREFORE, ORDER FRAMED BY THE A.O. IS BAD IN LAW AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT WITHOUT PREJUDICE TO THE GROUND NO.1 THE ADDITION OF RS. 17 , 97 , 653/ - ON ACCOUNT OF SUNDRY CREDITORS IS AGAINST THE PROVISION OF SECTION 68, BEC AUSE MOST OF THE PAYMENTS WAS OPENING BALANCE AND A,0. HAS NOT PROVIDE ANY OPPORTUNITY BEING HEARD AND CIT(A) HAS NOT MADE ANY PAGE 2 OF 4 FINDING BEFORE CONFIRMING THE ADDITION. HENCE, ORDER FRAMED BY THE A.O. AS WELL AS CIT ( A) IS BAD IN LAW AND WITHOUT ANY BASIS. '3 . THAT WITHOUT PREJUDICE TO GROUND NO. 1 THE A.O. HAS NOT JUSTIFIED IN ESTIMATION NET PROFIT RATE @ 8% OF THE TOTAL RECEIPTS. THE ASSESSEE HAS FILED HIS INCOME - TAX RETURN SHOWING TOTAL INCOME ON THE BASIS OF BOOKS OF ACCOUNTS WHICH WAS DULY AUDITED BY AU DITOR. THEREFORE, A.O. HAS NOT GIVEN ANY JUSTIFICATION TO ADOPT NET PROFIT RATE @ 8% WITHOUT REJECTING BOOKS OF ACCOUNTS. HENCE, ESTIMATION OF PROFIT @ 8% IS WITHOUT ANY BASIS AND NOT ACCORDING TO LAW AND CIT ( A) HAS NOT GIVEN ANY FINDING ON THIS ISSUE. 4. THAT WITHOUT PREJUDICE TO GROUND NO. 1 A.O. HAS TREAT THE STATUS OF THE ASSESSEE AS FIRM BUT HE HAS NOT ALLOWED INTEREST AND REMUNERATION U/S 40B OF I.T. ACT AND CIT ( A) HAS NOT MADE ANY COMMENTS ON THIS ISSUE. THEREFORE, ORDER OF A.O. I S INCOMPLETE AND S ILENCE OF CIT( A) IS IMPROPER TO DISMISS THE APPEAL. 3 . THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER OF CIT APPEALS ORDER DATED 06/02/2015. THE BRIEF FACTS OF THE CASE IS THAT ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF FRANCHISEE OF M/S FRANKLIN INST OF AIR HOSTESSES TRAINING. IT FILED ITS RETURN OF INCOME FOR RS. 1 94180/ - ON 29 9/2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NONE APPEARED BEFORE THE LD. ASSESSING OFFICER, HENCE HE FRAMED ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT ON 30/11/2011. ASSESSEE HAS OUTSTANDING CREDITORS OF RS. 1 797653/ - WHICH WERE ADDED TO THE RETURN INCOME OF THE ASSESSEE. THE GROSS RECEIPT OF THE ASSESSEE WAS RS. 1 055 8113/ - AND 8% OF THE GROSS RECEIPT WAS ALSO ADDED TO THE INCOME OF ASSESSEE AMOUNTING TO RS. 8 29524/ - . THEREFORE, TOTAL INCOME WAS COMPUTED AT RS. 2 821360/ - . AGAINST THIS, ASSESSEE FILED APPEAL BEFORE CIT (A) WHO IN TURN DISMISSED THE APPEAL OF A SSESSEE CONFIRMING ASSESSED INCOME. AGAINST THIS, ASSESSEE IS IN APPEAL BEFORE US. PAGE 3 OF 4 4 . LD. A R SUBMITTED A PAPER BOOK CONTAINING 25 PAGES MOSTLY THE COPY OF INCOME TAX RETURNS, COMPUTATION OF TOTAL INCOME, ALONG WITH FINAL ACCOUNTS DULY AUDITED, APPLICATION U NDER SECTION 154 FILED BEFORE CIT (A). HE SUBMITTED THAT THAT THE ASSESSEES OFFICE IS SITUATED AT WESTERN CUTHERY ROAD , MEERUT WHEREAS THE NOTICE WAS SERVED ON THE OFFICE OF ONE OF THE PARTNER. BECAUSE OF THIS, HE STATED THAT COMPLIANCE WITH THE NOTICE S OF HEARING SUBMITTED BY ASSESSING OFFICER COULD NOT BE MADE . THEREFORE, THERE IS A REASONABLE CAUSE IN FAVOUR OF ASSESSEE FOR FAILURE TO APPEAR BEFORE AO. 5 . AGAINST THIS LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT NOTICES TO THE ASSESSEE WERE PROPERL Y SERVED AND ASSESSEE DID NOT RESPOND TO THOSE NOTICES. THEREFORE, HE SUBMITTED THAT ASSESSMENT ORDER IS MADE APPLYING PROVISIONS OF SECTION 144 OF THE INCOME TAX ACT. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IT IS APPARENT THAT THERE IS SOME CONFUSION IN THE ADDRESS TO WHICH NOTICES WERE SERVED ON ASSESSEE. THE 1 ST GROUND OF APPEAL ITSELF SPEAKS THAT NO FURTHER NOTICES WERE NOT SOLD ON THE ASSESSEE AND THEREFORE IT RESULTED INTO EX PARTE ASSESSMENT ORDER. THIS GROUND WAS ALSO RAISED BEFORE C IT (A) WHO NOTED THAT PARA NO. 3.3 OF THE ORDER THAT NOTICE WAS SERVED BY AFIXTURE ON 27 - 09 - 2010, WHICH REMAINED UNATTENDED. WE ARE OF THE VIEW THAT INTEREST OF THE REVENUE AS WELL AS ASSESSEE WOULD NOT BE PREJUDICED IF ASSESSEE IS GIVEN ONE MORE OPPORTU NITY OF HEARING. TO THIS LD. AUTHORIZED REPRESENTATIVE GAVE AN UNDERTAKING BEFORE THE BENCH TO APPEAR BEFORE THE ASSESSING PAGE 4 OF 4 OFFICER AND COOPERATE IN ASSESSMENT PROCEEDINGS FAIRLY. LD. DEPARTMENTAL REPRESENTATIVE ALSO AGREED TO THE PROPOSITIONS THAT AS THE ASSESSMENT HAS BEEN MADE EX PARTE IF ONE MORE OPPORTUNITY IS GIVEN TO ASSESSEE AND FOR WHICH THE LD. H AS GIVEN AUTHORIZED REPRESENTATIVE BEFORE THE BENCH, AN UNDERTAKING THE ISSUE WOULD BE CONSIDERED AFRESH. IN VIEW OF THIS, WE SET ASIDE THE WALL ASSESS MENT BACK TO THE FILE OF ASSESSING OFFICER TO ASSESS INCOME OF THE ASSESSEE DE NOVO AFTER AFFORDING REASONABLE, OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE RESULT. ALL THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE SET ASIDE WITH ABOUT DIRECTION IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 . 03 .2016 . - S D / - - S D / - ( I.C. SUDHIR ) ( PRASHANT MAHARISHI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 5 .03.2016 * AJAY KUMAR KEOT COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT (A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI