Deepak Nigam, Kanpur V. Astt. Commissioner of Income Tax-1, Kanpur

ITA 184/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4767 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A R SHUKLA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 184/LKW/2015 ASSESSMENT YEAR: 2010 - 11 DEEPAK NIGAM 36, BLOCK B, SHYAM NAGAR KANPUR V. ASSTT. CIT - 1 KANPUR T AN /PAN : AAQPN1639L (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. A. R. SHUKLA, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 18 01 201 6 DATE OF PRONOUNCEMENT: 03 02 201 6 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1 . BECAUSE THE LEARNED CIT(APPEALS) OUGHT NOT TO HAVE COMPLETED & FINALIZED THE HEARING TO THE BEST OF HIS JUDGMENT AS THE APPELLANT REMAINED ON OVERSEAS TOUR DURING THE PERIOD FROM 9/9/2014 TO 18/9/2014 THEREFORE THE APPELLANT COULD NOT AVAIL THE PROPER OPPORTUNITY OF BEING HEARD. 2 . BECAUSE THE LEARNED ASSESSING OFFICER WAS WRONG IN DISALLOWING COMMISSION ON EXPORT SALES TO APPLY THE PROVISION O F SEC 9, SEC 195 SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 ON ADHOC BASIS, IGNORING THE FACTS AND MADE THE ADDITION. : - 2 - : 3 . BECAUSE THE LEARNED ASSESSING OFFICER HAS ERRONEOUSLY DISALLOWED THE EXPORT SALES COMMISSION PAID TO FOREIGN COMMISSION AGENTS FOR EXPO RT SALES OF RS.12,54,072/ - AND ADDED TO THE INCOME U/S. 40(A) (IA) I.E. PAYMENT WITHOUT DEDUCTION OF TAX AT SOURCE. THE LEARNED ASSESSING OFFICER HAS ERRONEOUSLY DEFINES THE 'EXPORT SALES COMMISSION' TO 'FEE FOR TECHNICAL SERVICES' AND AS A RESULT DISALLOW ED THE EXPENSES. 4 . BECAUSE IN THE VIEW OF DECIDED CASE IN THE MATTER OF COMMISSIONER OF INCOME TAX (CENTRAL) VS M/S. MODEL EXIMS (APPEAL NO 361 OF 2013) BY THE HONORABLE ALLAHABAD HIGH COURT AND THE APPELLANT'S EARLIER YEAR'S CASE I.E. ASSESSMENT YEARS 2011 - 12 AND 2012 - 13 BASED ON THE SAME FACTS HAVING BEEN ACCEPTED BY THE A.O. U/S 143(1) AND 143(3) OF THE INCOME TAX ACT, 1961 RESPECTIVELY, THE ADDITION MADE BY THE AO IS LIABLE TO BE DELETED. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. 3 . THE LD. D.R. HAS ALSO AGREED TO THIS SUBMISSIONS OF TH E LD. COUNSEL FOR THE ASSESSEE, AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS : - 3 - : DISPOSED OF THE APPEAL WITHOUT D EALING WITH THE ISSUES ON MERIT. W E ARE OF THE VIEW THAT SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A D IRECTION TO RE - ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPT ION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD FEBR UARY, 2016 JJ: 1501 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR