SHRI RAJENDRA KUMAR TEKRIWAL, V. THE ACIT 4(2),

ITA 202/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1538 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-10-2009
• Assessment Year: misc
• Appeal Filed On: 21-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K SINGH LD
• Assessee Lawyers: C P RAWKA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 143(2); 144; 139

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.202/IND/2008 AY : 2004-05 RAJENDRA KUMAR TEKRIWAL, 19/02, SOUTH TUKOGANJ, INDORE (PAN ADCPT 6940 K) ..APPELLANT V/S. ACIT-4(2), INDORE ..RESPONDENT ASSESSEE BY : SHRI C.P. RAWKA, CA DEPARTMENT BY : SHRI K.K. SINGH, LD. CIT, DR ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT-(A)-II, INDORE, DATED 21.1.2008 FOR THE AY 2004-05 ON THE GROUND TH AT THE LD. FIRST APPELLATE AUTHORITY ERRED IN LAW AND ON FACTS IN CONFIRMING T HE DISALLOWANCE OF INTEREST PAYMENT OF RS.20,37,011/- AND RS.83,514/- TO FAIRDE AL MARWAH GARRAGE LTD. AND BANK RESPECTIVELY IN SPITE OF THE FACT THAT THE PAYMENTS WERE GENUINE . 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I C.P. RAWKA, LD. COUNSEL FOR ASSESSEE AND SHRI K.K. SINGH, LD. CIT, DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ADDL. EVIDENC E FILED BEFORE THE TRIBUNAL MAY BE ADMITTED. THE ADDL. EVIDENCE WAS CLAIMED TO BE POINTED OUT TO THE PAGE 2 OF 4 ASSESSING OFFICER AS THE BANK WAS NOT COOPERATING D URING THE RELEVANT PERIOD. PLEA WAS ALSO RAISED THAT THERE WAS A MARRIAGE IN T HE FAMILY AND THE ASSESSEE BEING THE SENIOR MEMBER OF THE FAMILY WAS ENGAGED I N THE AFFAIRS, THEREFORE, COULD NOT COMPLY WITH THE DIRECTION OF THE ASSESSIN G OFFICER. THE SHARES WERE ARGUED TO BE PLACED BEFORE THE BANK. HOWEVER, THE L D. CIT, DR STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT OPPO RTUNITY WAS PROVIDED TO THE ASSESSEE, CONSEQUENTLY, THE ADDL. EVIDENCE FILE D BEFORE THE TRIBUNAL, MAY NOT BE ADMITTED. TO THE ASSERTION OF THE DEPARTMENT , IT WAS PLEADED THAT THE IMPUGNED ISSUE MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER AS THE ASSESSEE IS IN THE POSITION TO SUBSTANTIATE ITS CLAIM AS TRUE FACTS WERE NOT EXAMINED BY THE ASSESSING OFFICER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON THE FIL E. BRIEF FACTS ARE THAT THE ASSESSEE DECLARED LOSS OF RS.37,29,213/- IN ITS RET URN FILED ON 1.11.2004. THE FIRST NOTICE U/S 143(2) DATED 1.8.2005 WAS ISSUED T O THE ASSESSEE ON 30.8.2005. AS PER THE DEPARTMENT, ANOTHER NOTICE U/ S 143(2) DATED 2.2.2006 WAS ISSUED ON 7.2.2006. THESE NOTICES WERE NOT COMP LIED WITH BY THE ASSESSEE. HOWEVER, IN RESPONSE TO NOTICE U/S 143(2) DATED 20.12.2006, NOTICE U/S 142(1) DATED 20.12.2006, AND SHOW CAUSE NOTICE U/S 144 DATED 20.12.2006, THE COUNSEL FOR ASSESSEE ATTENDED THE P ROCEEDINGS ON 27.12.2006. AS PER THE REVENUE, THE COUNSEL FOR AS SESSEE DID NOT FILE ANY REPLY TO THE SHOW CAUSE NOTICE, CONSEQUENTLY, THE A SSESSMENT WAS COMPLETED PAGE 3 OF 4 U/S 144 OF THE ACT TO THE BEST OF THE JUDGMENT OF T HE LD. ASSESSING OFFICER. IN ITS P & L A/C FOR THE YEAR ENDING ON31.3.2004, FILE D WITH THE RETURN, A NET LOSS OF RS.40,68,213/- WAS SHOWED. AS PER THE REVENUE SI NCE THE ASSESSEE DID NOT COOPERATE, CONSEQUENTLY, THE P & L A/C WAS REJECTED AND THE LOSS OF RS.31,56,715/-, SHOWN ON ACCOUNT OF SALE OF SHARES WAS DISALLOWED. ON APPEAL, THE ASSESSMENT ORDER WAS AFFIRMED WHICH IS UNDER CHALLENGE BEFORE THIS TRIBUNAL. THE ASSESSEE HAS FILED A PAPER BOOK RUNNING INTO 1 TO 40 PAGES. HOWEVER A LETTER DATED 9.10.2009 HAS BEEN FILED BY SUBMITTING THAT THE EVIDENCE LIKE COPY OF SUIT FILED BY DENA BANK, COPY OF NOTICE FROM ADVOCATE AND COPY OF LETTER FROM BANK (PAGES 29 TO 40 OF THE PAPER BOOK) COULD NOT BE FURNISHED AS THE SAME WERE NOT AVAILABLE DUE TO DIS PUTE WITH THE BANK AND THIS FACTUM WAS CLAIMED TO BE CLARIFIED BY THE COUN SEL FOR ASSESSEE DURING ASSESSMENT PROCEEDINGS FOR WHICH OUR ATTENTION WAS INVITED TO PAGE 17 OF THE PAPER BOOK. WE HAVE PERUSED THE RECORD AND FOUND TH AT IN THE CURRENT ASSET THERE WERE SHARES SHOWED IN STOCK-IN-TRADE. EVEN OT HERWISE, THE ASSESSING OFFICER DID NOT OPT TO ISSUE NOTICE UNDER SUB-SEC. (9) OF SEC. 139 OF THE ACT IF HE WAS SATISFIED THAT THE RETURN FILED BY THE ASSES SEE IS DEFECTIVE, THEREFORE, HE WAS SUPPOSED TO INTIMATE THE DEFECT TO THE ASSES SEE WITHIN THE STIPULATED PERIOD. HOWEVER, THAT WAS NOT DONE BY HIM. THERE IS NOT DISPUTE TO THE FACT THAT SALES WERE PLACED BEFORE THE BANK. ALL THESE F ACTS WERE NOT EXAMINED AT ANY LEVEL. WITHOUT COMMENTING FURTHER AND KEEPING I N VIEW THE PRINCIPLE OF NATURAL JUSTICE THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, IN ALL FAIRNESS, PAGE 4 OF 4 WE REMAND THIS APPEAL TO THE FILE OF THE LD. ASSESS ING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO ME NTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANT IATE ITS CLAIM. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES ON THE CONCLUSION O F THE HEARING ON 12.10.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12.10.2009 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR