Sojitra Textiles Pvt.Ltd., Surat V. The Income tax Officer,Ward-4(3), Surat

ITA 1624/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1426 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SMITI SAMANT
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.1624/AHD/2013 ( / ASSESSMENT YEAR : 2006-07 ) SOJITRA TEXTILES PVT.LTD. 53-57, SHREE KRUPA INDUSTRIAL ESTATE VARACHHA ROAD KAPODRA NR. HAKIM CHICHI, SURAT / VS. THE ITO WARD-4(3) SURAT $ ./ ./ PAN/GIR NO. :AADCS 3821 Q ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) $&) / APPELLANT BY : NONE '($&* ) / RESPONDENT BY : MRS. SMITI SAMANT, SR.DR +* / DATE OF HEARING 31/05/2016 ,-./* / DATE OF PRONOUNCEMENT 08/06/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT DATE D 26/03/2013 FOR THE ASSESSMENT YEAR 2006-07. ITA NO.1624/AHD /2013 SOJITRA TEXTILES PVT.LTD. VS. ITO ASST.YEAR 2006-07 - 2 - 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- 2.1. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF MANUFACTURING OF TEXTURIZED YARN AND GREY CLOTH AND EMBROIDERY ON CLOTH ON JOB-WORK BASIS. ASSESSEE FILED ITS RETURN OF INCOME FOR AY 2006-07 ON 29/12/2006 DECLARING TOTAL INCOME OF RS. 10,340/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESS MENT WAS FRAMED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE ORDER DATED 24/12/2008 AND THE TOTAL TAX ABLE INCOME AFTER ADJUSTMENT OF BROUGHT FORWARD LOSS WAS DETERMINED A T RS.NIL. SUBSEQUENTLY, THE CASE WAS REOPENED U/S.147 OF THE ACT AND NOTICE U/S.148 OF THE ACT WAS ISSUED ON 05/07/2010 FOR REA SON THAT ASSESSEE WAS ALLOWED CARRIED FORWARD OF UNABSORBED DEPRECIATION PERTAINING TO AY 1997-98 BEYOND A PERIOD OF EIGHT YEARS. THEREAFTER , THE RE-ASSESSMENT WAS FINALIZED U/S.143(3) R.W.S.147 OF THE ACT AND T HE ORDER WAS PASSED ON 30/06/2011, WHEREIN UNABSORBED DEPRECIATION FOR AY 1997-98 AMOUNTING TO RS.5,52,121/- WAS NOT ALLOWED TO BE CA RRIED FORWARD. ON THE AFORESAID DENIAL OF CLAIM OF UNABSORBED DEPRECI ATION, AO VIDE ORDER DATED 16/03/2012 HELD THAT ASSESSEE HAD WILLFULLY F URNISHED INACCURATE PARTICULARS OF INCOME BY CLAIMING WRONGLY CARRIED F ORWARD OF UNABSORBED DEPRECIATION BEYOND A PERIOD OF EIGHT YEARS AND HAS THUS COMMITTED A DEFAULT WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT AND, THEREFORE, ASSESSEE WAS LIABLE FOR PENALTY. HE ACCORDINGLY LE VIED PENALTY OF ITA NO.1624/AHD /2013 SOJITRA TEXTILES PVT.LTD. VS. ITO ASST.YEAR 2006-07 - 3 - RS.1,85,844/-. AGGRIEVED BY THE ORDER OF THE AO, A SSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO VIDE ORDER DATED 2 6/03/2013 (IN APPEAL NO. CAS-II/26/TRFD/2012-13 DISMISSED THE APP EAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), AS SESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS:- 1 . THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE PENALTY OF RS.1,85,844/- LEVIED U/S.271(1)(C) OF THE ACT, WHIC H IS ERRONEOUS, BAD-IN-LAW AND HENCE, NEEDS TO BE DELETE D. 2. WITHOUT PREJUDICE TO GROUND NO.1, EVEN ON FACT S AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS E RRED IN DISMISSING THE APPEAL OF THE APPELLANT ON AN EX-PAR TE BASIS, WHICH IS ERRONEOUS, BAD-IN-LAW AND HENCE, THE IMPUG NED ORDER NEEDS TO BE QUASHED. 3. ON THE DATE OF HEARING, ADJOURNMENT APPLICATION WAS FILED BY THE LD.AR SEEKING ADJOURNMENT ON ACCOUNT OF THE NON-AVA ILABILITY OF THE COUNSEL. THE ADJOURNMENT APPLICATION IS REJECTED A ND THEREAFTER WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE. 4. ON PERUSING THE ORDER OF LD.CIT(A), WHEREBY HE HAS CONFIRMED THE PENALTY LEVIED BY AO U/S.271(1)(C) OF THE ACT. WE FIND THAT THE LD.CIT(A) HAS PASSED AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. IT IS A SETTLED LAW THAT LD.CIT(A) HAS NO JURISDICTION TO D ISMISS THE APPEAL OF THE ITA NO.1624/AHD /2013 SOJITRA TEXTILES PVT.LTD. VS. ITO ASST.YEAR 2006-07 - 4 - ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSU E BEFORE HIM. EVEN IN AN EX-PARTE ORDER, THE LD.CIT(A) SHOULD HAVE DECIDED THE GROUN DS OF APPEAL OF THE ASSESSEE ON MERITS THEREOF. CONSIDER ING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT I TS CASE BEFORE LD.CIT(A). WE THEREFORE REMIT THE ISSUE BACK TO LD .CIT(A) TO PASS A DE NOVO ORDER ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS T O STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARI NG TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD. CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 08/06/2016 SD/- SD/- () () (RAJPAL YADAV) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 08/ 06 /2016 3..,.../ T.C. NAIR, SR. PS ITA NO.1624/AHD /2013 SOJITRA TEXTILES PVT.LTD. VS. ITO ASST.YEAR 2006-07 - 5 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 456 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-II, SURAT 5. 89:'56 , 56/ , 4 / DR, ITAT, AHMEDABAD 6. :<=+ / GUARD FILE. / BY ORDER, (8' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 31.5.16 (DICTATION-PAD 6 PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.6.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.8.6.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.6.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER