M/s. Chandaka Meadows, Bhubaneswar V. ITO, Ward-4(2), Bhubaneswar

ITA 182/CTK/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4347 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: D K MOHANTY
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH CUTTACK BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER ./ ITA NO. 18 2 / CTK /20 1 7 ( / ASSESSMENT YEAR : 20 1 2 - 20 1 3 ) M /S CHANDAKA MEADOWS, PLOT NO. 3 00 , KHARVEL NAGAR, UNIT - III , BHUBANESWAR VS. ITO WARD - 4(2), BHUBANESWAR ./ ./ PAN/GIR NO. : A A HFC 2455 J ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI D.K.MOHANTY, AR / REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 12 / 0 2 /201 8 / DATE OF PRONOUNCEMENT 13 / 0 2 /201 8 / O R D E R TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 2 , BHUBANESWAR , DAT ED 02 .03.2017 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE ASSESSMENT ORDER DATED 28.03.2015 PASSED BY THE LD ASSESSING OFFICER & ORDER DATED 02.03.2017 PASSED BY CIT(APPEALS) - 2, BHUBANESWAR ARE VOID ABINITIO, AGAINST THE NATU RAL JUSTICE, UNJUSTIFIED , ERRONEOUS ,ARBITRARY , CONTRARY TO FACTS ,BAD I N LAW, WITHOUT JURISDICTION AND /OR IN EXCESS OF JURISDICTION AND LEGALLY UNTENABLE. 2. FOR THAT THE LD. A.O. HAS ERRED ON FACT AND LAW IN DISALLOWING CERTAIN EXPENSES SUCH AS: PURC HASE OF MATERIALS, LABOUR EXPENSES, DONATION, FUEL CHARGES, INTEREST ON SERVICE TAX AND LAND DEVELOPMENT CHARGES AND ADDING THEM TO THE TOTAL INCOME ARE CONTRARY TO THE PROVISIONS OF LAW IN VIEW OF THE FACT THAT DURING THE IMPUGNED YEAR, THE ASSESSEE HAS N OT CARRIED OUT ITS BUSINESS ACTIVITIES EXCEPT CAPITALIZING THE EXPENDITURE, HENCE THEY ARE LIABLE TO BE DELETED. 3. FOR THAT THE LD. A.O. AS WELL AS THE LD. CIT (APPEAL) - 2, HAS ERRED ON FACT AND LAW IN DISALLOWING PURCHASE OF MATERIALS TO THE TUNE OF R S. 6,33,964/ - AND ADDED BACK TO THE TOTAL INCOME WITHOUT A SPEAKING ORDER AND/OR WITHOUT ANY SPECIFIC INSTANCES OF NON SUBMISSION OF DETAIL BILLS, VOUCHERS, HENCE THEY ARE TO BE DELETED. ITA NO. 18 2 /CTK/201 7 2 4. FOR THAT DISALLOWANCE OF LABOUR EXPENSES AMOUNTING TO RS. 2,30,2 75/ - IN ABSENCE OF A SPEAKING ORDER AND WITHOUT ANY SPECIFIC INSTANCES ARE LIABLE TO BE DELETED. 5. FOR THAT DISALLOWANCE OF DONATION WHICH ARE SPENT EXCLUSIVE AND WHOLLY FOR THE PURPOSE OF BUSINESS AMOUNTING TO RS. 15,000/ - ARE ARBITRARY, EX FACIE ILLEG AL AND LIABLE TO BE DELETED. 6. FOR THAT DISALLOWANCE OF FUEL CHARGES AMOUNTING TO RS. 19,947/ - ESTIMATED @ 10% OF THE TOTAL EXPENDITURE ON THE FACTS AND PECULIAR CIRCUMSTANCES OF THE CASE (THE ACCOUNTS ARE BEING AUDITED) ARE NOT SUSTAINABLE ON FACT AND LAW AND LIABLE TO BE DELETED. 7. FOR THAT THE LD. A.O. AS WELL AS THE LD. CIT (A) - 2 HAS ERRED ON FACT AND LAW IN DISALLOWING LAND DEVELOPMENT CHARGES TO THE TUNE OF RS. 2,03,250/ - AND ADDED BACK TO THE TOTAL INCOME WITHOUT A SPEAKING ORDER AND/OR WITH AN Y SPECIFIC INSTANCES OF NON SUBMISSION OF DETAIL BILLS, VOUCHERS, HENCE, THEY ARE TO BE DELETED. 8. FOR THAT THOUGH THE LD. A.O. HAVE DISALLOWED VARIOUS EXPENSES, BUT HOWEVER HAS NOT DISTURB THE WORK - IN - PROGRESS AS REPORTED IN THE AUDITED ACCOUNT FOR THE IMPUGNED PERIOD AND THEREBY ACCEPTING IN ONE HAND THE WORK - IN - PROGRESS AND DENYING THE EXPENSES ON THE OTHER ARE NOT ONLY UNJUSTIFIED, ILLEGAL, ARBITRARY BUT NOT SUSTAINABLE ON FACT AND LAW. 9. FOR THAT THE DISPOSAL OF THE 1ST APPEAL IN A CASUAL MANNER WITHOUT APPLICATION OF MIND TO THE VARIOUS ISSUES RAISED IN THE WRITTEN NOTE OF SUBMISSION IN ITS RIGHT PROSPECTIVE AMOUNTS TO DENIAL OF NATURAL JUSTICE AND THEREFORE THE 1ST APPELLATE ORDER MADE IGNORING THE EXHAUSTIVE WRITTEN NOTE OF SUBMISSION ARE LIAB LE TO BE SET ASIDE. 10. FOR THAT THE ASSESSEE WAS DEPRIVED FROM THE BENEFIT OF REASONABLE OPPORTUNITY OF BEING HEARD AND DEPRIVED FROM THE BENEFIT OF NATURAL JUSTICE. 11. THAT THE APPELLANT CRAVES LEAVE TO ADD TO SUPPLEMENT MODIFY THE GROUNDS HEREIN A BOVE BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 12. FOR THESE GROUNDS AND OTHER GROUNDS IF ANY THAT WILL BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF ASSESSMENT BE QUASHED. 3 . AT THE OUTSET, THE AR OF THE ASSESSEE ARGUED AND S UBMITTED THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) WITHOUT CONSIDERING ITA NO. 18 2 /CTK/201 7 3 THE WRITTEN NOTE OF SUBMISSIONS FILED BEFORE HIM. THE CIT(A) HAS ALSO NOT GIVEN REASON AS TO WHY THE SUBMISSION S OF THE ASSESSEE ARE NOT ACCEPTABLE TO HIM. THEREFORE, THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND THE MATTER BE REMANDED BACK TO HIS FILE FOR DISPOSAL OF THE APPEAL AFRESH BY PASSING A WELL REASONED ORDER. 4. THE DR COULD NOT CONTROVERT THE ABOVE SUBMISSIONS OF AR OF THE ASSESSEE. 5. I FIND THAT THE CIT( A) HAS NOT DEALT WITH THE SUBMISSIONS OF THE ASSESSEE BEFORE HIM IN HIS ORDER AS TO WHY THEY ARE NOT ACCEPTABLE TO HIM. IN MY CONSIDERED VIEW THE SUBMISSIONS OF THE ASSESSEE SHOULD BE CONSIDERED BY THE CIT(A) IN HIS ORDER AND A SPEAKING ORDER SHOULD BE PAS SED ON THE SAME AS TO WHY THEY ARE NOT ACCEPTABLE TO HIM SO THAT THE ASSESSEE CAN MEET ITS CASE BEFORE THE HIGHER FORUM. I FIND THAT THIS HAS NOT BEEN DONE IN THE PRESENT APPEAL BEFORE HIM. I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO HIS FILE FOR RE - ADJUDICATION OF THE APPEAL OF THE ASSESSEE BY PASSING WELL REASONED ORDER AND AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, I ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 13 / 02 /201 8 . SD/ - (N. S. SAINI) / ACCOUNTANT MEMBER CUTTACK ; DATED 13 / 02 /201 8 . . / PKM , SENI OR PRIVATE SECRETARY ITA NO. 18 2 /CTK/201 7 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - M/S CHANDAKA MEADOWS, PLOT NO.300, KHARVEL NAGAR, UNIT - III, BHUBANESWAR 2. / THE RESPONDENT - ITO, WARD - 4 ( 2 ), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//