Assistant Commissioner of Income-tax, Circle - 1(2), Pune V. Dharamraj Industrial Contracts (India) Private Limited, Delhi

ITA 1476/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9553 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Additional evidence; Set aside
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, J UDICIAL MEMBER . / ITA NO . 1476 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(2), PUNE ....... / APPELLANT / V/S. DHARAMRAJ INDUSTRIAL CONTRACTS (INDIA) PVT. LTD., III FLOOR, ABHISHEK PLAZA, POCKET B MAYUR VIHAR PHASE - 2, DELHI 110092 PAN : AABCD3620K / RESPONDENT ASSESSEE BY : S HRI KAPIL GOEL REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 25 - 06 - 2019 / DATE OF PRONOUNCEMENT : 01 - 0 7 - 201 9 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1, PUNE DATED 21 - 03 - 2017 FOR THE ASSESSMENT YEAR 2012 - 13. 2 ITA NO .1476/PUN/2017, A.Y. 2012 - 13 2. SHRI PANKAJ GARG REPRESENTING THE DEPARTMENT SUBMITTED THAT THE REVENUE IN APPEAL HAS ASSAILED TH E RELIEF OF RS.3,28,27,296/ - GRANTED TO THE ASSESSEE BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE. THE LD. DR SUBMITTED THAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS NEVER APPEARED BEFORE THE ASSESSING OFFIC ER. NOTICE U/S. 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. THE SAME WAS DULY SERVED . THEREAFTER, SEVERAL NOTICES U/S. 142(1) WERE ISSUED AND SERVED ON ASSESSEE. HOWEVER, THE ASSESSEE NEITHER ATTENDED THE ASSESSMENT PROCEEDINGS NOR REPL IED TO ANY OF THE NOTICES SERVE D . THE ASSESSING OFFICER THEREAFTER ISSUED PENALTY NOTICE U/S. 271(1)(B) OF THE ACT. THE ASSESSEE DID NOT BOTHER TO RESPOND TO THE SAID NOTICE AS WELL. THE ASSESSING OFFICER WAS CONSTRAINED TO PASS ASSESSMENT ORDER U/S. 144 OF THE ACT. THE ASSESSING OFFICER MADE ADDITIONS/DISALLOWANCES AGGREGATING TO RS.3,41,21,918/ - . THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) CHALLENGING ASSESSMENT ORDER. DURING FIRST APPELLATE PROCEEDINGS THE ASSESSEE FILED ADDITIONAL EVIDENCE S . THE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO VERIFY OR EXAMINE THE DOCUMENTS FILED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS ALLOWED THE APPEAL OF ASSESSEE. THE LD. AR SUBMITTED THAT A FAIR OPPORTUNITY TO VERIFY AND EXAMINE THE DOCUMENTS FURNISHED FOR THE FIRST TIME BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE BEEN ALLOWED TO THE ASSESSING OFFICER. 3. PER CONTRA, SHRI KAPIL GOEL APPEARING ON BEHALF OF THE ASSESSEE VEHEM ENTLY DEFENDED THE IMPUGNED ORDER. THE LD. AR SUBMITTED THAT THE DOCUMENTS FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WERE ALREADY ON RECORD. THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER 3 ITA NO .1476/PUN/2017, A.Y. 2012 - 13 EXAMINING THE SAME DID NOT DEEM IT NECESSARY TO CALL F OR THE REMAND REPORT AND AFTER HAVING BEING SATISFIED WITH THE CLAIM OF ASSESSEE ESTIMATED THE NET PROFIT @ 8% OF THE TURNOVER. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS WITHOUT CONSIDERING THE PAST NET PROFIT OF THE AS SESSEE HAS MADE ITEMIZED ADDITIONS. 4. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . A PERUSAL OF ASSESSMENT ORDER SHOWS THAT SEVERAL NOTICES WERE SENT TO THE ASSESSEE BY ASSESSING OFFICER . HOWEVER, THE ASSESSEE DID NOT BOTHER TO APPEAR BEFORE THE ASSESSING OFFICER NOR ANY WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IT IS EVIDENT FROM RECORD S THAT THE ASSESSEE DID NOT COOPERATE WITH THE AS SESSING OFFICER IN ASSESSMENT PROCEEDINGS. HENCE, THE ASSESSING OFFICER WAS CONSTRAINED TO INVOKE THE PROVISIONS OF SECTION 1 44 FOR FINALIZING THE ASSESSMENT. 5. IN FIRST APPELLATE PROCEEDINGS , PURPORTEDLY , THE ASSESSEE HAS FILED CERTAIN DOCUMENTS IN S UPPORT OF HIS CONTENTIONS. THE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT SEEKING ANY REPORT FROM THE ASSESSING OFFICER ON DOCUMENTS FILED BY THE ASSESSEE PROCEEDED ON TO ESTIMATE NET PROFIT OF 8% OF THE TOTAL TURNOVER. V IOLATION OF R ULE 46 OF THE INCO ME TAX RULES BY THE FIRST APPELLATE AUTHORITY IS APPARENT WRIT LARGE. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, WE ARE OF CONSIDERED VIEW THAT THIS APPEAL NEEDS REVISIT TO THE ASSESSING OFFICER. THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL IS RESTOR ED TO THE FILE OF ASSESSING OFFICER FOR FRESH ASSESSMENT . THE ASSESSING OFFICER SHALL GRANT REASONABLE OPPORTUNITY OF HEARING TO THE 4 ITA NO .1476/PUN/2017, A.Y. 2012 - 13 ASSESSEE, IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND COOPERATE IN ASSESS MENT PROCEEDINGS. 6. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON MONDAY, THE 01 ST DAY OF JU LY , 201 9 . SD/ - SD/ - ( R.S. SYAL ) (VIKAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 01 ST JU LY , 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 1, PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / / / TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE