Delhi Iron & Steel Co. Ltd., Ghaziabad V. DCIT, Ghaziabad

ITA 1575/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4566 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 16-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDRA MEENA
• Assessee Lawyers: SANJAY PARASHAR
• Keywords: Principle of natural justice; Accommodation entries
• Section: 147; 148; 143(3); 264

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE MS SUCHITRA KAMBLE, JU DICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEM BER I.T.A. NO. 1575/DEL/2 017 (A.Y. 2010-11) DELHI IRON & STEEL CO. LTD. 601, DISCO COMPOUND, G.T. ROAD, GHAZIABAD PAN : AAACD5262G (APPELLANT) VS. DCIT CIRCLE-1 GHAZIABAD (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST THE ORDER DATED 31.12. 2016 PASSED BY CIT(A)- GHAZIABAD FOR ASSESSMENT YEAR 2010-11. 2. RETURN DECLARING A LOSS OF RS. 5,71,76,265/- WAS FILED ON 27.09.2010. BASED ON INFORMATION RECEIVED FROM DIRECTOR (I&C-I) MUMBAI REGARDING TAX EVASION BY THE ASSESSEE, THE ASSESSING OFFICER INIT IATED ACTION U/S 147 BY ISSUING A NOTICE U/S 148 ON 27.03.2015. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED WRITTEN SUBMISSIONS AND COMPUTATION OF INCOME. THE ASSESSING OFFICER COMPLETED ASSESSMENT UNDER SECTION 143(3)/1 48 MAKING AN ADDITION OF RS. 2,18,33,713/- TREATING THE BUSINESS LOSS ON SHA RE TRADING CLAIMED BY THE ASSESSEE AS FICTITIOUS A TOTAL LOSS OF RS. 3,37,96, 595/- AFTER DETAILED APPELLANT BY SH. ANOOP SHARMA, SANJAY PARASHAR, CAS RESPONDENT BY SH. SURENDRA MEENA, SR.DR DATE OF HEARING 08.08.2019 DATE OF PRONOUNCEMENT 27.08.2019 INVESTIGATION HOLDING THAT THE SAME IS FICTITIOUS B USINESS LOSS BASED ON ACCOMMODATION ENTRIES RECEIVED BY THE ASSESSEE. 3. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT (A) DISMISSED THE APPEAL ON THE GROUND THAT THE ASSESSEE DID NOT WANT TO CONTEST THE APPEAL AND THE REBY REJECTING THE APPEAL AS WELL AS THE APPLICATION FILED U/S 264 OF THE ACT. 4. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GIV EN AN OPPORTUNITY OF HEARING TO THE ASSESSEE WHICH IS EVIDENT FROM THE O RDER OF THE CIT(A). THE LD. AR FURTHER SUBMITTED THAT THE CIT(A) DID NOT CONSID ER THE APPLICATION OF THE WITHDRAWAL FILED BY THE ASSESSEE BEFORE PASSING THE ORDER OF THE DISMISSAL. THE LD. AR FURTHER SUBMITTED THAT THE CIT(A) IGNORED TH E FACT THAT BY NOT ALLOWING THE ASSESSEE TO WITHDRAW THE APPEAL FILED BEFORE CI T(A), THE SAME RESULTED IN REJECTION OF REQUEST APPLICATION FILED U/S 264 OF T HE ACT ON TECHNICAL GROUNDS, AS APPLICATION U/S 264 OF THE ACT CANNOT BE CONSIDE RED IN THE CIRCUMSTANCES WHEN THE APPEAL WAS ALREADY DECIDED ON MERITS AND T HE ASSESSEE WAS LEFT WITH NO OPTION BUT TO SURRENDER THEIR RIGHT OF PURSUING THE APPLICATION FILED U/S 264 OF THE ACT BEFORE THE PRINCIPAL COMMISSIONER OF INC OME TAX, GHAZIABAD. THUS, THE LD. AR SUBMITTED THAT THE MATTER MAY BE REMANDE D BACK TO THE FILE OF THE CIT(A) AND THE SAME MAY BE DECIDED ON MERIT. 5. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT B EFORE THE PR. CIT-GHAZIABAD, THE REVISION APPLICATION U/S 264 OF THE ACT WAS PEN DING. THE CIT(A) IGNORED THE FACT THAT BY NOT ALLOWING THE ASSESSEE TO WITHDRAW THE APPEAL FILED BEFORE CIT(A), THE SAME RESULTED IN REJECTION OF REQUEST A PPLICATION FILED U/S 264 OF THE ACT ON TECHNICAL GROUNDS, AS APPLICATION U/S 264 OF THE ACT CANNOT BE CONSIDERED IN THE CIRCUMSTANCES WHEN THE APPEAL WAS ALREADY DECIDED ON MERITS AND THE ASSESSEE WAS LEFT WITH NO OPTION BUT TO SURRENDER THEIR RIGHT OF PURSUING THE APPLICATION FILED U/S 264 OF THE ACT B EFORE THE PRINCIPAL COMMISSIONER OF INCOME TAX, GHAZIABAD. DESPITE KNOW ING THIS FACT, THE CIT(A) APPEAL HAS NOT ALLOWED THE ASSESSEE TO WITHDRAW THE APPEAL AFTER THE DECISION ON THE APPLICATION U/S 264 OF THE ACT. THEREFORE, I T WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE CIT(A) F OR GIVING THE FRESH HEARING TO THE ASSESSEE AND DECIDING THE ISSUES INVOLVED IN TH E APPEAL ON MERIT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARIN G BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL IS PARTLY ALLOWED FOR S TATISTICAL PURPOSE. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2019 . SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/08/2019 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION .08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK