The ITO, Ward-8(1), Ahmedabad V. Trisun Commodities Pvt.Ltd., Ahmedabad

ITA 196/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6524 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 20-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S A BOHRA
• Assessee Lawyers: NIMISH VAYAWALA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 12/5/2011 DRAFTED ON: 16/ 05/2011 1. ITA NO.196/AHD/2009 A.Y. 2002-03 2. ITA NO.197/AHD/2009 A.Y. 2003-04 ITO WARD-8(1) AHMEDABAD VS. TRISUN COMMODITIES PVT.LTD. 601, ANURAG BUILDING OPP.GUJARAT VIDYAPITH USMANPURA, ASHRAM ROAD AHMEDABAD PAN/GIR NO. : AABCT 4180 Q ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S.A. BOHRA, SR. D.R. RESPONDENT BY: SHRI NIMISH VAYAWALA O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE A RISING FROM THE ORDERS OF THE LEARNED CIT(APPEALS) FOR ASSESSMENT Y EAR 2002-03 & 2003-04 BOTH IDENTICALLY DATED 24/11/2008 RESPECTIV ELY IN RESPECT OF DELETION OF PENALTY LEVIED U/S.271(1)(C) OF THE I.T .ACT OF RS.3,80,000/- AND RS.57,50,000/-. 2. FACTS HAVE REVEALED THAT FOR BOTH THE ASSESSMENT YEARS, THE ASSESSMENT ORDERS WERE PASSED U/S.144 OF THE I.T. A CT DATED 08/02/2-06 & 22/02/2006 FOR ASSESSMENT YEARS 2002-03 & 2003-04 R ESPECTIVELY. AS PER THE IMPUGNED PENALTY ORDER U/S.271(1)(C) OF THE I.T.ACT BOTH DATED ITA NOS.196 & 197/AHD/200 9 ITO VS. TRISUN COMMODITIES PVT.LTD. ASST.YEARS - 2202-03 & 2003-04 - 2 - 12/03/2008, THE PENALTY WAS IMPOSED IN RESPECT OF D ISALLOWANCE U/S.80HHC AND ADDITION MADE U/S.68 OF THE I.T.ACT. FOR ASSESSMENT YEAR 2003-04, IT HAS ALSO BEEN MENTIONED THAT THE I NITIATION OF CONCEALMENT PENALTY WAS ALSO IN RESPECT OF UNEXPLAI NED INVESTMENT AND CAPITAL WORK IN PROGRESS. IT HAS ALSO BEEN INFORME D THAT LEARNED CIT(APPEALS) HAS DELETED THE CONCEALMENT PENALTY FO R BOTH THE YEARS VIDE ORDERS REFERRED SUPRA, HENCE, THE REVENUE IS IN APP EALS. 3. THE PRESENT FACTUAL POSITION IS THAT QUANTUM ADD ITIONS WERE CONFIRMED BY THE FIRST APPELLATE AUTHORITY, THEREFO RE, THE ASSESSEE HAD PREFERRED APPEALS BEFORE THE TRIBUNAL. THE RESPECT ED CO-ORDINATE BENCH A AHMEDABAD VIDE ITA NOS.1973 & 2203/AHD/2006 T ITLED AS M/S.TRISUNS COMMODITIES PVT.LTD. VS. ACIT ORDER, DA TED 22/05/2009, HAS RESTORED THE ENTIRE ISSUE BACK FOR RE-CONSIDERA TION AS PER THE FOLLOWING PARAGRAPH: IN THE PRESENT CASE, WE NOTICE THAT THE AUTHORITIE S HAVE MADE ADDITIONS WITHOUT CONSIDERING ANY EXPLANATION OF TH E ASSESSEE AND WITHOUT APPRECIATING THE REASONS FOR NOT BEING ABLE TO FURNISH ANY DOCUMENT OR EXPLANATION BEFORE THEM. NO DOUBT ASS ESSEE WAS GIVEN OPPORTUNITY BY THE LOWER AUTHORITIES TO PRODU CE THE EVIDENCE BUT IF ASSESSEE WAS UNABLE TO AVAIL SUCH OPPORTUNIT Y FOR THE REASONS BEYOND HIS CONTROL SUCH AS HE WAS UNDER ARR EST OR THERE WAS SUCH SIMILAR EXTERNAL FORCE DISABLING HIM TO CO MPLY WITH A NOTICES THEN IT CANNOT BE SAID THT NATURAL JUSTICE HAS BEEN GIVEN TO THE ASSESSEE. IT HAS TO BE SEEN UNDER SUCH CIRCUMS TANCES WHETHER THE ASSESSEE HAS IGNORED THE NOTICES OR WHETHER THE RE WAS INDIFFERENCE OR WHETHER THERE WAS WILLFUL DEFIANCE FOR THE REASONS WHICH WAS TOTALLY UNDER HIS CONTROL. THEN APPELLAT E AUTHORITIES MAY NOT ADMIT ADDITIONAL EVIDENCE, AND DECIDE THE M ATTER ON THE BASIS OF MATERIAL AVAILABLE BEFORE THEM. BUT IN A CASE WHERE DUE ITA NOS.196 & 197/AHD/200 9 ITO VS. TRISUN COMMODITIES PVT.LTD. ASST.YEARS - 2202-03 & 2003-04 - 3 - TO EXTERNAL FORCES WORKING ON THE ASSESSEE, HE WAS UNABLE TO COMPLY WITH THE NOTICES AND SUBMIT AN EXPLANATION B EFORE THE CONCERNED AUTHORITIES THEN IT HAS TO BE CONSIDERED AS A REASONABLE CAUSE FOR NOT BEING ABLE TO COMPLY WITH THE NOTICE ISSUED BY THE AUTHORITIES. ON THE BASIS OF REASONS ADVANCED BY T HE ASSESSEE IN THE AFFIDAVIT FILED BY THE DIRECTOR WHICH REMAINS U NCONTROVERTED BY THE REVENUE, THE ADDITIONAL EVIDENCES ARE REQUIRED TO BE CONSIDERED AND THE ISSUES ARE REQUIRED TO BE DECIDE D JUDICIOUSLY IN THE LIGHT OF THESE EVIDENCES. THEREFORE FOR THE PU RPOSES OF IMPARTING SUBSTANTIAL JUSTICE AND TO CONSIDER THE E VIDENCE ON VARIOUS ISSUES RAISED BY THE AO WE RESTORE THE MATT ER TO HIS FILE FOR FRESH CONSIDERATION AND DECIDE THE MATTER AFRESH, A FTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND AFTER CONSIDERING THE EVIDENCES AS ABOVE. 4. ONCE THE QUANTUM APPEAL HAS BEEN RESTORED BY THE RESPECTED TRIBUNAL FOR DE NOVO CONSIDERATION SPECIALLY CONSIDERING THE FACT THAT THE IMPUGNED ASSESSMENT ORDER OF THE ASSESSING OFFICER WAS AN EX-PARTE ORDER, THEREFORE, IN THE MEANTIME, THE QUESTION OF LEVY OF PENALTY NEED NOT TO BE ADJUDICATED AND TO BE DECIDED ON THE LINES OF THE OUTCOME OF THE ASSESSMENT YET TO BE FRAMED AS PER THE DIRECTIONS O F THE TRIBUNAL SUPRA. FOR THIS LEGAL PROPOSITION THAT THE QUANTUM IS YET TO BE DECIDED AND THEN IT IS JUDICIOUS TO DECIDE THE QUESTION OF LEVY OF P ENALTY, WE HEREBY PLACE RELIANCE ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RADHEY SHYAM JAISWAL VS. INCOME TAX APPELLATE TRIBU NAL & ANR. REPORTED AT [1992] 198 ITR 623 (ALL.), IN THE CASE OF ADDL.CIT VS. BADRI PRASAD KASHI PRASAD REPORTED AT [1993] 200 IT R 206 (ALL.) AND DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE O F CIT VS. R.HARIKRISHNA NADAR REPORTED AT [1995]216 ITR 65 ( MAD.), WHERE ADDITION IS ITSELF DOUBTFUL REQUIRING REMAND FOR FU RTHER ENQUIRY AS REGARDS THE MERITS OF THE CASE. IT IS APPROPRIATE NOT TO PRE-JUDGE THE ISSUE OF LEVY ITA NOS.196 & 197/AHD/200 9 ITO VS. TRISUN COMMODITIES PVT.LTD. ASST.YEARS - 2202-03 & 2003-04 - 4 - OF PENALTY AND IT IS JUSTIFIABLE TO REMIT FOR RE-CO NSIDERATION. FOR THIS PROPOSITION, WE REFER THE DECISION OF HON'BLE MADRA S HIGH COURT IN THE CASE OF CIT VS. COROMANDAL INDAG PRODUCTS (P) LTD. REPORTED AT [2003] 260 ITR 289 (MAD.). THEREFORE, THE ENTIRE ISSUE EN BLOC IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DEC IDED DE NOVO AS PER LAW. AD INTERIM THE PENALTY IS HEREBY QUASHED BUT THE ASSESSING OF FICER IS AT LIBERTY TO DECIDE EX MERO MOTU AS PER LAW. GROUND OF THE REVENUE MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPO SES. 5. IN THE RESULT, REVENUES APPEALS ARE ALLOWED BUT FOR STATISTICAL PURPOSES AS PER THE DIRECTIONS PRO TANTO. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 27 / 5 /2011. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 27/ 05 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XIV, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NOS.196 & 197/AHD/200 9 ITO VS. TRISUN COMMODITIES PVT.LTD. ASST.YEARS - 2202-03 & 2003-04 - 5 - 1. DATE OF DICTATION..13/5/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16/5/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S27.5.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.5.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER