ITO, Gurgaon V. M/s. Golden Lubes, Gurgaon

ITA 1851/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4801 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 1851 /DEL/201 4 : ASSTT. YEAR : 2007 - 08 INCOME TAX OFFICER, WARD - 1(2), GURGAON VS M/S GOLDEN LUBES, GOLDEN AUTOMOBILES, 177 - 14, JACUBPURA, GURGAON (APPELLANT) (RESPONDENT) PAN NO. A A DFG8155B ASSESSEE BY : NONE REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 03 .08 .201 7 DATE OF PRONOUNCEMENT : 22 . 0 8 .201 7 ORDER PER N . K. SAINI, AM: THIS IS AN APPEAL BY THE DE PARTMENT AGAINST THE ORDER DATED 17.01.2014 OF LD. CIT(A), FARIDABAD. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE AO WAS NOT HOLDING JURISDICTION OVER T HE CASE, AS FROM THE PAN DATABASE IT IS CRYSTAL CLEAR THAT THE PAN OF THE ASSESSEE HAS NEVER GONE OUT OF JURISDICTION OF THE AO. 2. THE LD. CIT(A) HAS ERRED IN IGNORING THE FACT THAT THE PAN - AAFFG2769K WAS GOT ISSUED WAY BACK IN 2004 AS PER PAN DATABASE AND NOT IN THE FINANCIAL YEAR 2007 - 08 RELEVANT TO A.Y. 2008 - 09 AS CONTENDED BY THE ASSESSEE. 3. THE LD. CIT(A) HAS ERRED IN NOT TAKING INTO ACCOUNT THE FACT THAT M/S GOLDEN LUBES AND M/S GOYAL AUTOMOBILES ARE TWO DIFFERENT CONCERNS WITH COMMON ITA NO. 1851 /DEL /201 4 GOLDEN LUBES 2 PARTNERS BUT HAVING SEPARATE PAN - AADFG8155B AND AAFFG2769K RESPECTIVELY. THE TWO CONCERNS ARE BEING ASSESSED WITH WARD - 1(2), GURGAON AND WARD - 1, RAIGARH RESPECTIVELY. 4. THE LD. CIT(A) HAS ERRED IN IGNORING THE FACT THAT THE FIRST STATUTORY NOTICE U/S 143(2) DATED 2 9.09.2008, WHICH WAS ISSUED TO M/S GOLDEN LUBES, 177 - 14, JACUBPURA, GURGAON WAS AT THE ADDRESS OF REGISTERED OFFICE OF THE ASSESSEE (THE SAME IS CLEAR FROM THE PAN DATABASE RECORDS), AND THAT THIS NOTICE HAS NOT BEEN RECEIVED BACK UNSERVED. 5. THE LD. CIT (A) HAS ERRED IN ACCEPTING THE REPLY OF THE ITO, WARD - 1, RAIGARH THAT THE CASE BELONGS TO HIS JURISDICTION, AS THE ITO, WARD - I, RAIGARH HAS HIMSELF STATED IN HIS LETTER THAT FOR A.Y. 2007 - 08, HE HAS NOT ASSESSED THE CASE. 6. THE LD. CIT(A) HAS ERRED IN IG NORING THE FACT THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY THROUGH CASS, WHICH ASSIGNS THE CASE TO THE AO HAVING JURISDICTION OVER THE PAN. 7. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.42,94,315/ - MADE ON ACCOUNT OF UNSECURED LO AN AS THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF THE PERSONS WHO HAD GIVEN LOANS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 8. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.86,74,670/ - MADE ON ACCOUNT OF CREDITORS AS THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE CREDITORS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ITA NO. 1851 /DEL /201 4 GOLDEN LUBES 3 9. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,75,120/ - MADE ON ACCOUNT OF PURCHASED ON FIXED A SSETS AS THE ASSESSEE HAS FAILED TO FURNISH THE DETAILS OF ASSETS PURCHASED AND DOCUMENTARY EVIDENCE FOR PURCHASE OF THESE ASSETS. 10. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,11,200/ - MADE U/S 40(A)(IA) AS NO TDS ON THE RENT WAS DEDUCTED . 11. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,99,429/ - MADE U/S 40(A)(IA) AS NO TDS ON THE ADVERTISEMENT WAS DEDUCTED. 12. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.25,08,288/ - MADE AS THE ASSESSEE COULD NOT PROVE THE GENU INENESS OF OTHER EXPENSES CLAIMED IN THE P&L ACCOUNT. 13. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. EARLIER ALSO WHENEVER THE CASE WAS FIXED FOR HEARING, THERE WAS NO REPRESENTATION ON THE ASSESSEE S SIDE. THEREFORE, THE APPEAL WAS HEARD EX - PARTE QUA THE ASSESSEE. 4. DURING THE COURSE OF HEARING, THE LD. DR SUBMITTED THAT THE LD. CIT( A) QUASH ED THE ASSESSMENT ORDER , WITHOUT GIVING AN OPPORTUNITY OF HEARING TO THE AO, EVEN WHEN THE ASSESSEE WAS NOT PRESENT BEFORE THE LD. CIT(A). ITA NO. 1851 /DEL /201 4 GOLDEN LUBES 4 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRE SENT CASE, IT IS NOTICED THAT THE LD. CIT(A) CLEARLY MENTIONED IN THE IMPUGNED ORDER THAT NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE OR THE DEPARTMENT BEFORE HIM . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM P ARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH , IN ACCORDANCE WITH LAW , AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 6 . IN THE RESULT, THE AP PEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 22 /0 8 /2017 ) SD/ - SD/ - ( KULDIP SINGH ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT M EMBER DAT ED: 22 /08 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR