Mahavir Irrigation Pvt. ltd., New Delhi V. ITO, New Delhi

ITA 1852/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3755 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARENDRA KUMAR
• Assessee Lawyers: DHARENDRA KUMAR
• Keywords: Gift; Depreciation; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: E NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER ITA NO: 1852/DEL/2010 ASSESSMENT YEAR : 2004-05 M/S MAHAVIR IRRIGATION P.LTD. VS. ITO C/O RAJESH JAIN 44-A JHANG CO SOCIETY WARD 6(1), N EW DELHI PLOT 40, SECTOR 13, ROHINI NEW DELHI (APPELLANT) (RESPOND ENT) APPELLANT BY : SH.DHARENDRA KUMAR, C.A. RESPONDENT BY : SRI AMARENDRA KUMAR, SR. D.R. O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER DATED 18.2.2010 OF LD.CIT(A)-IX, NEW DELHI RELATING TO T HE A.Y. 2004-05. 2. THE GROUNDS OF APPEAL READ AS UNDER. THAT THE LD.CIT(A) HAS GROSSLY ERRED : (I) IN CONFIRMING THE ASSESSMENT ORDER PASSED BY T HE AO, WARD 6(1), NEW DELHI WITHOUT AFFORDING A REASONABLE OR A MEANINGFUL OPPORTUNITY TO THE APPELLANT TO REPRESEN T ITS CASE. 2 (II) IN NOT AFFORDING A PROPER AND MEANINGFUL OPPOR TUNITY TO THE APPELLANT TO REPRESENT ITS CASE AND THUS VIO LATING THE PRINCIPLES OF NATURAL JUSTICE. (III) IN DISALLOWING THE TOTAL EXPENDITURE CLAIMED UNDER VARIOUS HEADS IN THE PROFIT AND LOSS ACCOUNT OF RS. 14,04,392/- DEBITED BY THE COMPANY. (IV) IN REJECTING THE CLAIM OF THE APPELLANT COMPAN Y ON ACCOUNT OF DEPRECIATION ON CAR AMOUNTING TO RS. 1,31,748/- AND IN CONFIRMING THE ADDITION MADE BY T HE AO IN THIS REGARD. (V) IN CONFIRMING THE REJECTION OF CLAIM OF THE APP ELLANT COMPANY OF SHORT TERM CAPITAL LOSS ON SALE OF SHARE S AMOUNTING TO RS. 48,14,825/- BY THE AO ON THE PRESUMPTION THAT THE TRANSFER OF SHARES WAS A GIFT BY THE APPELLANT COMPANY. (VI) IN CONFIRMING THE INCLUSION OF A SUM OF RS. 9, 960/- IN ITS INCOME DESPITE THE INCOME BEING EXEMPT. (VII) THAT THE APPELLANT CRAVES TO ADD, ALTER OR DE LETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. 3. AT THE OUTSET OF THE HEARING, THE LD.A.R. FOR TH E ASSESEE PLEADED THAT THE ASSESSEE WAS NOT PROVIDED REASONABLE AND M EANINGFUL OPPORTUNITY BY THE LD.CIT(A) TO REPRESENT HIS CASE. HE PLEADED THAT THERE IS A VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE AND THE APPEAL MAY BE RESTORED TO THE FILE OF LD.CIT(A) FOR DECIDING DENO VO AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ON THE OTHER HAND THE LD.D.R. SUBMITTED THAT THE ASSESEE DID NOT COOP ERATE IN THE ASSESSMENT PROCEEDINGS AND THE A.O. HAS TO MAKE AN ORDER U/S 144 OF THE I.T.ACT, 1961. SIMILAR PATTERN OF BEHAVIOUR RE MAINED EVEN BEFORE THE CIT(A). EVEN AFTER 8 OPPORTUNITIES, THE ASSESSEE D ID NOT COMPLY FULLY WITH 3 THE NOTICES ISSUED BY THE LD.CIT(A). HE PLEADED TH AT THE ORDER OF LD.CIT(A) SHOULD BE CONFIRMED. 4. AFTER HEARING BOTH THE SIDES AND LOOKING TO THE FACTS OF THE CASE WE FIND THAT THE LD.CIT(A) CONFIRMED THE ORDER OF THE A.O. BY HOLDING AS UNDER. NON PURSUING OF THE APPEAL IS A CLEAR INDICATION TH AT THE APPELLANT DOES NOT HAVE ANY MATERIAL EVIDENCE IN IT S POSSESSION TO CHALLENGE THE DECISION OF THE AO AT THE ASSESSME NT STAGE. IN VIEW OF ABOVE CIRCUMSTANCES, THE APPEAL FILED BY TH E APPELLANT AGAINST THE IMPUGNED ASSESSMENT ORDER IS THEREFORE REJECTED . THUS THE LD.CIT(A) HAS NOT DECIDED THE ISSUES ON ME RIT. THE LAST OPPORTUNITY PROVIDED BY CIT(A) WAS ON 15.2.2010. T HE ORDER PASSED ON 18.2.2010. ON 17.2.2010 ASSESSEE SUBMITTED AN APPL ICATION BY STATING AS WE REQUEST YOU TO KINDLY GRANT ADJOURNMENT OF O NE MONTH AS SOME DOCUMENTS HAVING BEARING TO THE PRESENT CASE ARE WI TH THE CHARTERED ACCOUNTANT WHO WAS HANDLING THE MATTER PREVIOUSLY D URING ASSESSMENT PROCEEDINGS. THE COMPANY IS MAKING ALL EFFORTS TO TRACE THE SAME. CONSIDERING THE FACTS OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY, WE SET ASIDE THE ORDER OF LD.CIT(A) WITH THE DIRECTION TO DECIDE THE APPEAL ON MERIT AFTER HEARING THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD.CIT(A) WITHIN THREE MONTHS FROM THE D ATE OF RECEIPT OF THIS ORDER. 4 5. IN THE RESULT, THE APPEAL OF THE ASSESEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE, 2010, IMMEDIATELY AFTER CONCLUSION OF THE HEARING. (C.L.SETHI ) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH JUNE, 2010 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y //