M/s. Big Lion Markting Co., Kheda V. The Income tax Officer(OSD),Ward-6(4), Ahmedabad

ITA 1713/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94310 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 27-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80G; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI KUL BHARAT, JM, MANISH BORAD, AM. ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 M/S BIG LION MARKETING CO., C/O PATEL VIGNESHKUMAR KANTIBHAI PIPALVALU FALIYU, NR.OLD SWAMINARAYAN TEMPLE, AT & PO DABHAN, TAL-NADIAD, DIST. KHEDA, GUJARAT. VS THE INCOME-TAX OFFICER (OSD), WARD-6(4), AHMEDABAD. (APPELLANT) (RESPONDENT) PA NO.AABFL 3354P APPELLANT BY SHRI ASEEM THAKKAR, AR RESPONDENT BY SHRI ALBINUS TIRKEY, DR DATE OF HEARING: 1.9.2015 DATE OF PRONOUNCEMENT: 02/09/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) XI, AHMEDABAD VIDE HIS ORDER DATED 3.1.2 011 FOR AY 2007- 08, ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN PASSING AN EX PARTE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT HENCE THE SAME BEING AGAINST THE PRINCIPLES OF NATU RAL JUSTICE REQUIRES TO BE CANCELLED. ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 2 2. THE LD. CIT(A) HAS ERRED IN PASSING AN EX PARTE ORDER PRESUMING THAT THE NOTICE FIXING THE HEARING HAS BE EN SERED EFFECTIVELY THROUGH RPAD ON THE RESPONSIBLE PERSON. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF EXPENSES OF RS.1,06,285/- MADE BY THE ASSESSING OFF ICER U/S 37 OF THE IT ACT, 1961. THE DETAILS OF WHICH ARE AS UNDER : I. DISALLOWANCE OF RS.9,630/- DEBITED UNDER THE HEA D WELFARE EXPENSE ON 16.12.2006 WHICH WERE ALLEGED TO HAVE BEEN PAID TO SHRI BIPINBHAI PARTNER OF THE ASS ESSEE FIRM FOR MARRIAGE OF HIS DAUGHTER. II. DISALLOWANCE OF RS.16,775/- DEBITED UNDER THE H EAD ELECTRIC EXP. WHICH WERE ALLEGED TO HAVE BEEN PAID FOR THE ELECTRIC BILL OF THE PARTNER. III. DISALLOWANCE OF RS.67,500/- DEBITED UNDER THE HEAD WELFARE EXP. WHICH WERE ALLEGED TO HAVE BEEN PAID T O GORDHAN THAL (RESTAURANT) FOR THE SOCIAL FUNCTION O F THE PARTNER. IV. DISALLOWANCE OF RS.10,000/- DEBITED UNDER THE H EAD OFFICE EXP. WHICH WERE ALLEGED TO HAVE BEEN GIVEN FOR DHARMADA AT SURAT. V. DISALLOWANCE OF RS.2,380/- PAID TO GOPINATH YUVA K MANDAL FOR DUSSERA CELEBRATION. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF TOTAL EXPENSES OF RS.13,243/- FOR THE ALLEGED NON DEDUCTI ON OF TDS ON THE FOLLOWING PAYMENTS :- I. FOR PAYMENTS OF RS.2,21,382/- WHICH WAS GIVEN TO SHRI ANIKI K. SINHA FOR ACCESSORIES AND FITTING. II. CONSULTANCY FEE OF RS.78,568/- PAID TO NURLUP CONSULTANCY PVT. LTD. III. LUCKY DRAW PRIZES AND OTHER EXPENSES AMOUNTING TO RS.57,923 PAID TO SHRI NILESHKUMAR G. PATEL IV. PAYMENT OF RS.50,000 MADE TO ELLORA DECORATION UNDER THE HEAD WELFARE EXP. V. INTEREST PAYMENT OF RS.25,119 MADE TO SHRI VAISH ALIBEN PATEL VI. PAYMENT OF RS.21,480/- MADE TO CINEMORE PUBLICI TY. ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 3 VII. OUT OF TOTAL PAYMENTS FOR DECORATION TO GHANSH YAM DECORATOR, TDS NOT DEDUCTED ON RS.15000/- CONSIDERI NG THE SAME OFFICE EXPS. VIII. PAYMENT OF RS.2,75,600/- MADE TO RAJESH CARRI ERS FOR FREIGHT. IX. OUT OF THE RTO CHARGES OF RS.6,03,171 PAYMENT O F RS.1,15,240 MADE TO SHRI GAFURBHAI AND MUKESHBHAI H . SHAH FOR SERVICES RENDERED BY THEM IN CLEARING RTO MATTERS. 5. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF EXPENSES OF RS.27,09,385/- MADE BY THE AO CLAIMED B Y THE APPELLANT UNDER THE HEAD SALES AND SERVICES. 6. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF RS.3,23,458/- BEING 50% OF THE COMMISSION EXPENSES CLAIMED OF RS.6,46,916/-. 7. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF RS.5,85,993/- OUT OF TOTAL FREE ACCESSORIES EXPENSE S CLAIMED OF RS.2,92,997/-. 8. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF DEDUCTION OF RS.50,000 U/S 80G OF THE ACT BEING 50% OF THE AMOUNT OF DONATION OF RS.1,00,000/-. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF B EARING OF APPEAL. ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 4 2. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE D REW OUR ATTENTION TO THE ORDER OF LD. CIT(A) WHICH WAS PASSED EX PART E DUE TO NON- APPEARANCE OF THE ASSESSEE ON VARIOUS OCCASIONS AS MENTIONED IN THE ORDER OF CIT(A). THE LD. AR OF THE ASSESSEE INF ORMED THAT NO NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE FROM CIT(A) AND AS SUCH THE LD. AR OF THE ASSESSEE HAS REQUESTED FOR R ESTORING THE ISSUES RAISED IN THIS APPEAL TO THE FILE OF THE CIT (A). THE LD. AR OF THE ASSESSEE REQUESTED FOR RESTORING THE ISSUES AS RAISED IN THIS APPEAL TO THE FILE OF CIT(A). 3. THE LD. DR ALSO DID NOT OBJECT TO THE REQUEST MA DE BY THE LD. AR OF THE ASSESSEE IN REGARD TO RESTORING THE ISSUES T O THE FILE OF CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE AUTHORITIES B ELOW. WE DIRECT THE LD. CIT(A) TO ADJUDICATE THE ISSUES ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LOOKING TO THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY TO BOTH THE PARTIE S WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE ISSUES TO THE F ILE OF CIT(A). THE LD. CIT(A) IS DIRECTED TO TAKE THE CONSIDERED VIEW AFRE SH IN ACCORDANCE ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 5 WITH LAW, UNINFLUENCED BY EARLIER DECISION RENDERED ON MERITS OF THE CASE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/09/2015 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 02/09/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD ITA NO.1713/AHD/2011 ASST. YEAR 2007-08 6 1. DATE OF DICTATION: 1.9.2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 1.9.2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 02/09/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: