Vanshika Motors (P) Ltd., Meerut V. ACIT, Meerut

ITA 1916/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74233 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 11-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S MEENA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

ITA NO.1916/DEL/2012 ASSTT.YEAR: 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.1916/DEL/2012 ASSESSMENT YEAR : 2008-09 VANSHIKA MOTORS (P) LTD., VS ASSTT. COMMIS SIONER OF INCOME TAX, 766, GAHERA HOUSE, NH-58, CIRCLE-2, MEER UT. ROORKEE ROAD, MEERUT. (PAN: AACCV5241R) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VINOD KUMAR GOEL RESPONDENT BY : SHRI R.S. MEENA, C.I.T. DR O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF COMMISSIONER OF INCOME TAX(A), MEERUT DATED 14.2.20 12 IN APPEAL NO.329/10-11 FOR AY 2008-09. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS 12 G ROUNDS IN THIS APPEAL BUT AT THE OUTSET, WE TAKE UP GROUND NO.1 WHICH REA DS AS UNDER:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX(A) HAS ERRED IN DISMISSING THE APPEAL PETITION OF THE APPELLANT WITHOUT AFFORDING THE PROPER OPPORTUNITY OF BEING HEARD. 3. APROPOS ABOVE GROUND NO. 1, LD. COUNSEL OF THE A SSESSEE POINTED OUT THE ASSESSEES WRITTEN SUBMISSIONS (PAPER BOOK PAGE NO.1 TO 3) AND ITA NO.1916/DEL/2012 ASSTT.YEAR: 2008-09 2 PHOTOCOPIES OF THE REQUEST LETTER TO PROVIDE ZEROX COPY OF THE IMPOUNDED DOCUMENT SUBMITTED BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE COMMISSIONER OF INCOME TAX(A)-MEERUT (PB PAGE NO. 4 -8) BUT THE ASSESSEE COULD NOT GET THE REQUIRED COPIES OF ALL DOCUMENTS IMPOUNDED BY THE SURVEY TEAM OF THE DEPARTMENT ON 10.2.2009. LD. COUNSEL F URTHER SUBMITTED THAT OTHER THAN THESE DOCUMENTS, BOOKS OF ACCOUNTS, SALE S TAX RECORDS, OFFICE RECORDS MAINTAINED MANUALLY AND ELECTRONICALLY HAVE ALSO BEEN RETAINED BY THE DEPARTMENT AND THE ASSESSEE COULD NOT GET EITHE R ORIGINAL OR COPIES OF IMPOUNDED AND RETAINED BOOKS OF ACCOUNTS AND RECORD S EITHER DURING ASSESSMENT PROCEEDINGS OR DURING FIRST APPELLATE PR OCEEDINGS. THE COUNSEL OF THE ASSESSEE FURTHER CONTENDED THAT THE AUTHORIT IES BELOW COMPELLED THE ASSESSEE TO FILE ITS EXPLANATION AND REPLY TO THE N OTICES AND QUERIES RAISED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS AND IN THE ABSENCE OF IMPOUNDED DOCUMENTS AND OTHER VITAL BOOKS OF ACC OUNTS AND RECORDS, THE ASSESSEE WAS NOT ABLE TO FILE A SUITABLE AND COGENT REPLY BEFORE THE ASSESSING OFFICER. THE COUNSEL OF THE ASSESSEE VEHEMENTLY SU BMITTED THAT ABOVE ACT OF THE AUTHORITIES BELOW IS A CLEAR VIOLATION OF PRINC IPLES OF NATURAL JUSTICE AND ASSESSEE WAS NOT PROVIDED DUE OPPORTUNITY OF HEARIN G EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE FIRST APPELLAT E PROCEEDINGS. ITA NO.1916/DEL/2012 ASSTT.YEAR: 2008-09 3 4. ON ABOVE SUBMISSIONS AND CONTENTIONS OF THE ASSE SSEE, LD. DR SUBMITTED THAT THE ASSESSEE WAS PROVIDED DUE OPPORT UNITY OF HEARING BY THE ASSESSING OFFICER AND THIS FACT IS VERY CLEAR FROM THE ASSESSMENT ORDER BUT DESPITE ALL COOPERATION FROM THE DEPARTMENT, THE AS SESSEE COULD NOT EXPLAIN AND SUBSTANTIATE ITS EXPLANATION. THE DR FURTHER S UBMITTED THAT ON THE DATE FIXED BY THE ASSESSING OFFICER, NO COMPLIANCE WAS M ADE EITHER IN PERSON BY THE ASSESSEE OR THROUGH AN AUTHORIZED REPRESENTATIV E DULY APPOINTED BY THE ASSESSEE, THEREFORE, THE ASSESSING OFFICER HAD NO O PTION BUT TO COMPLETE THE ASSESSMENT ON MERITS ON THE BASIS OF AVAILABLE MATE RIAL, DOCUMENTS, REGISTER AND STATEMENTS ETC. PLACED ON RECORD. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS AN D CONTENTIONS OF BOTH THE PARTIES AND ON PERUSAL OF THE ASSESSMENT O RDER AS WELL AS THE IMPUGNED ORDER, WE OBSERVE THAT THE ASSESSMENT PROC EEDINGS WERE COMPLETED U/S 144 OF THE ACT AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE COMMISSIONER OF INCOME TAX(A) IN ABSENCE OF THE ASSESSEE BY PASSING A VERY SHORT AND CRYPTIC ORDER. FORM PAGE NO. 4-8 OF THE PAPER BOOK FILED BY THE ASSESSEE, WE CLEARLY OBSERVE THAT THE ASSESSEE MADE REPEATED WRITTEN REQUEST TO THE ASSESSING OFFICER BY SUBMITT ING LETTERS DATED 19.12.2010 AND 30.5.2011 AND AGAIN DURING THE APPEL LATE PROCEEDINGS, THE ASSESSEE MADE WRITTEN REQUEST TO THE COMMISSIONER O F INCOME TAX(A) ON ITA NO.1916/DEL/2012 ASSTT.YEAR: 2008-09 4 9.12.2011 AND 13.5.2013 WITH A HUMBLE REQUEST THAT THE COPIES OF THE IMPOUNDED DOCUMENTS ARE NEEDED TO PLACE THE ACTUAL FACTUAL MATRIX OF THE CASE. THEREFORE, SUITABLE INSTRUCTIONS MAY BE GIVE N TO THE CONCERNED AUTHORITIES. 6. IN VIEW OF ABOVE FACTUAL POSITION, WE CLEARLY OB SERVE THAT THE ASSESSEE COULD NOT GET REQUIRED COPIES OF THE DOCUMENTS IMPO UNDED DURING THE SURVEY CONDUCTED ON THE PREMISES OF THE ASSESSEE ON 10.2.2 009 AND BESIDES THIS, BOOKS OF ACCOUNTS, SALES TAX RECORDS, OFFICE RECORD S MAINTAINED MANUALLY AND ELECTRONICALLY BY THE ASSESSEE WERE ALSO RETAINED B Y THE DEPARTMENT AND DESPITE REPEATED REQUESTS OF THE ASSESSEE, NEITHER THE ORIGINAL BOOKS OF ACCOUNTS AND RECORD NOR ITS COPIES WERE PROVIDED TO THE ASSESSEE ENABLING HIM TO SUBMIT ITS EXPLANATION DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS. 7. ACCORDINGLY, WE HOLD THAT THE ASSESSEE COULD NOT GET DUE OPPORTUNITY OF HEARING BEFORE THE AUTHORITIES BELOW AND THE ASS ESSEE COULD NOT OFFER A SUITABLE EXPLANATION AND OTHER EVIDENCE AND DOCUMEN TS TO SUPPORT ITS CASE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE A PPELLATE AUTHORITY. WE ALSO OBSERVE THAT THE COMMISSIONER OF INCOME TAX(A) DECIDED THE APPEAL IN A CRYPTIC MANNER WITHOUT GIVING A SUITABLE NOTICE O F HEARING TO THE ASSESSEE. THUS, WE FIND IT APPROPRIATE TO SET ASIDE THE ORDER S OF THE AUTHORITIES BELOW ITA NO.1916/DEL/2012 ASSTT.YEAR: 2008-09 5 AND TO RESTORE THE ENTIRE CONTROVERSY TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION THAT THE ASSESSING OFFICER SHALL DECIDE THE CASE AFRESH BY AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. NEEDLESS TO SAY THAT THE ASSESSING OFFICER SHALL ALSO PROVIDE COPIES OF THE DOCUMENTS IMPOUNDED DURING THE SURVEY AS WELL AS OTHER BOOKS OF ACCOUNT S AND RECORDS RETAINED BY THE DEPARTMENT. ACCORDINGLY, GROUND NO. 1 OF THE A SSESSEE IS ALLOWED AS INDICATED ABOVE. 8. SINCE WE HAVE RESTORED THE ENTIRE CONTROVERSY TO THE FILE OF ASSESSING OFFICER WITH ABOVE DIRECTIONS, THEREFORE, OTHER GRO UNDS OF THE ASSESSEE DO NOT SURVIVE FOR ADJUDICATION ON MERITS AND WE ALSO DISM ISS THE SAME. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN THE TERMS AS MENTIONED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRA MOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 14TH FEBRUARY 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR