Azad Coach P.Ltd, Faridabad V. ACIT, Circle-1, Noida

ITA 2232/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3485 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI SENIOR
• Assessee Lawyers: UMESH SETH
• Keywords: Unexplained expenditure; Opportunity of being heard; Set aside
• Section: 271(1)(c); 69C; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI. BEFORE HONBLE VICE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER EARLY HEARING APPLICATION NOS.13, 14 & 15/DEL/2019 (IN ITA NOS.2232, 2233 & 2234/DEL./2018) (ASSESSMENT YEARS : 2013-14, 2013-14 & 2014-15) AND ITA NO.2232/DEL./2018 (ASSESSMENT YEAR : 2013-14) ITA NO.2233/DEL./2018 (ASSESSMENT YEAR : 2013-14) ITA NO.2234/DEL./2018 (ASSESSMENT YEAR : 2014-15) M/S. AZAD COACH PVT. LTD., VS. ACIT, CIRCLE 1, 2, HILL LANES, CIVIL LINES, NOIDA. NEW DELHI. (PAN : AAECA3035A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI UMESH SETH, ADVOCATE REVENUE BY : SHRI S.L. ANURAGI, SENIOR DR DATE OF HEARING : 01.02.2019 DATE OF ORDER : 25.02.2019 O R D E R PER BENCH : KEEPING IN VIEW THE FACTS INTER ALIA THAT THE LD. C IT (A) HAS PASSED THE IMPUGNED ORDER EX PARTE DUE TO NON APPEA RANCE OF THE ITA NOS.2232, 2233 & 2234/DEL./2018 2 ASSESSEE WITHOUT GOING INTO THE MERITS OF THIS CASE AND THAT ADEQUATE OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE PROVIDED TO THE ASSESSEE, THE APPLICATIONS FOR EARLY HEARING AR E HEREBY ALLOWED AND BENCH IS PROCEEDED TO HEAR THE APPEALS BY TODAY ITSELF. 2. THE APPELLANT, M/S. AZAD COACH PVT. LTD. (HEREIN AFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDERS ALL DATED 29.12.2017 PASSED BY LD. CIT (APPEALS)-I, NOIDA QUA THE ASSESSMENT YEARS 20 13-14, 2013- 14 & 2014-15 ON THE GROUNDS INTER ALIA THAT :- ITA NO.2232/DEL/2017 1. THAT THE IMPUGNED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFER TO LD. CIT (A)] DATED 29.12.2017 IS BAD IN LAW AND ON FACTS. 2. THAT THE ORDER OF THE LD. CIT (A) DESERVES TO BE SET ASIDE AS THE ASSESSEE WAS NOT ALLOWED ADEQUATE OPPORTUNIT Y OF BEING HEARD. 3. THAT THE ORDER PASSED BY THE LD. CIT (APPEALS) U NDER SECTION 250 OF THE INCOME TAX ACT,1961 IS BAD IN LA W AND NOT JUSTIFIED BECAUSE LD. CIT (A) HAS DISMISSED THE APP EAL SIMPLY ON ACCOUNT OF NON-PROSECUTION OF THE APPEAL BY THE APP ELLANT WITHOUT APPRECIATING THE JUDGEMENT OF HON'BLE BOMBA Y HIGH COURT IN CASE OF CIT (CENTRAL) NAGPUR VS. PREMKUMAR ARJUNDAS LUTHRA (HUF), [2016] 69 TAXMANN.COM 407 (BOMBAY), W HERE IT HAS BEEN HELD THAT LAW DOES NOT EMPOWER LD. CIT (A) TO DISMISS THE APPEAL FOR NON-PROSECUTION. 4. THAT THE ORDER PASSED BY THE LD. CIT (A) U/S 250 OF THE ACT IS PERVERSE TO THE PROVISIONS OF THE LAW AND TO THE FACTS OF THE CASE, BECAUSE OF NOT FOLLOWING THE PROVISION OF SEC TION 250(6) OF THE INCOME TAX ACT, 1961 WHICH STATES THAT ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHAL L BE IN ITA NOS.2232, 2233 & 2234/DEL./2018 3 WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. 5. THAT THE LD AO HAS ERRED IN MAKING ADDITION OF RS.91,05,481 U/S 69C OF THE INCOME TAX ACT, 1961. 6. THAT THE LD. AO HAS ERRED IN MAKING ADDITION OF RS.4,32,898 ON ACCOUNT OF UNEXPLAINED EXPENDITURE O N BALANCES WRITTEN OFF. ITA NO.2233/DEL/2018 1. THAT THE IMPUGNED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFER TO LD. CIT (A)] DATED 29.12.2017 IS BAD IN LAW AND ON FACTS. 2. THAT THE ORDER OF THE LD. CIT (A) DESERVES TO BE SET ASIDE AS THE ASSESSEE WAS NOT ALLOWED ADEQUATE OPPORTUNIT Y OF BEING HEARD. 3. THAT THE ORDER PASSED BY THE LD. CIT (APPEALS) U NDER SECTION 250 OF THE INCOME TAX ACT,1961 IS BAD IN LA W AND NOT JUSTIFIED BECAUSE LD. CIT (A) HAS DISMISSED THE APP EAL SIMPLY ON ACCOUNT OF NON-PROSECUTION OF THE APPEAL BY THE APP ELLANT WITHOUT APPRECIATING THE JUDGEMENT OF HON'BLE BOMBA Y HIGH COURT IN CASE OF CIT (CENTRAL) NAGPUR VS. PREMKUMAR ARJUNDAS LUTHRA (HUF), [2016] 69 TAXMANN.COM 407 (BOMBAY), W HERE IT HAS BEEN HELD THAT LAW DOES NOT EMPOWER LD. CIT (A) TO DISMISS THE APPEAL FOR NON-PROSECUTION. 4. THAT THE ORDER PASSED BY THE LD. CIT (A) U/S 250 OF THE ACT IS PERVERSE TO THE PROVISIONS OF THE LAW AND TO THE FACTS OF THE CASE, BECAUSE OF NOT FOLLOWING THE PROVISION OF SEC TION 250(6) OF THE INCOME TAX ACT, 1961 WHICH STATES THAT ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHAL L BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. 5. THAT THE LD AO HAS ERRED IN ISSUING THE NOTICE O F PENALTY U/S 271(1)(C) AT THE CORRECT ADDRESS AND HAS NOT GI VEN THE OPPORTUNITY OF BEING HEARD AS A PRINCIPLE OF NATURA L JUSTICE. 6. THAT THE AO HAS ERRED IN IMPOSING THE PENALTY U/ S 271(1)(C). ITA NOS.2232, 2233 & 2234/DEL./2018 4 ITA NO.2234/DEL/2018 1. THAT THE IMPUGNED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFER TO LD. CIT (A)] DATED 29.12.2017 IS BAD IN LAW AND ON FACTS. 2. THAT THE ORDER OF THE LD. CIT (A) DESERVES TO BE SET ASIDE AS THE ASSESSEE WAS NOT ALLOWED ADEQUATE OPPORTUNIT Y OF BEING HEARD. 3. THAT THE ORDER PASSED BY THE LD. CIT (APPEALS) U NDER SECTION 250 OF THE INCOME TAX ACT,1961 IS BAD IN LA W AND NOT JUSTIFIED BECAUSE LD. CIT (A) HAS DISMISSED THE APP EAL SIMPLY ON ACCOUNT OF NON-PROSECUTION OF THE APPEAL BY THE APP ELLANT WITHOUT APPRECIATING THE JUDGEMENT OF HON'BLE BOMBA Y HIGH COURT IN CASE OF CIT (CENTRAL) NAGPUR VS. PREMKUMAR ARJUNDAS LUTHRA (HUF), [2016] 69 TAXMANN.COM 407 (BOMBAY), W HERE IT HAS BEEN HELD THAT LAW DOES NOT EMPOWER LD. CIT (A) TO DISMISS THE APPEAL FOR NON-PROSECUTION. 4. THAT THE ORDER PASSED BY THE LD. CIT (A) U/S 250 OF THE ACT IS PERVERSE TO THE PROVISIONS OF THE LAW AND TO THE FACTS OF THE CASE, BECAUSE OF NOT FOLLOWING THE PROVISION OF SEC TION 250(6) OF THE INCOME TAX ACT, 1961 WHICH STATES THAT ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHAL L BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. 5. THAT THE LD AO HAS ERRED IN DISALLOWANCE OF RS.8 ,64,371, THE VARIOUS EXPENSES ON ACCOUNT OF PERSONAL USE BY THE ASSESSEE COMPANY. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF THE ASSES SMENT ORDER FRAMED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) IN ASSESSMENT YEAR 2013-14 (ITA NO.2233/ DEL/2018), PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) WERE IN ITIATED. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, A O PROCEEDED TO ITA NOS.2232, 2233 & 2234/DEL./2018 5 LEVY THE PENALTY TO THE TUNE OF RS.29,68,500/- FOR ASSESSMENT YEAR 2013-14 FOR FURNISHING INACCURATE PARTICULARS OF IN COME UNDER SECTION 271(1)(C) OF THE ACT. AO IN AY 2013-14 (IT A NO.2232/DEL/2018) FRAMED ASSESSMENT U/S 143 (3) OF THE ACT AT THE INCOME/LOSS OF RS.55,04,594/- BY WAY OF MAKING ADDI TION OF RS.91,05,481/- AND RS.4,32,898/- U/S 69 OF THE ACT AND ADDITION OF RS.13,64,275/- ON ACCOUNT OF DISALLOWANCE OF EXPEN SES CLAIMED BY THE ASSESSEE. SIMILARLY, IN AY 2014-15 (ITA NO.223 4/DEL/2018), AO FRAMED ASSESSMENT U/S 143 (3) OF THE ACT BY MAKI NG ADDITION OF RS.894/- ON ACCOUNT OF INTEREST IN THE NATURE OF PENALTY INCURRED BY THE ASSESSEE ON ACCOUNT OF DELAY IN DEPOSIT OF T DS AND MADE ADDITION OF RS.8,64,371/- ON ACCOUNT OF MAKING DISA LLOWANCE OF EXPENSES CLAIMED BY THE ASSESSEE AND THEREBY ASSESS ED THE TOTAL INCOME AT RS.6,92,827/-. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF APPEALS WHO HAS DISMISSED THE APPEALS EX PARTE VIDE IMPUGNED ORDERS. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.2232, 2233 & 2234/DEL./2018 6 6. BARE PERUSAL OF THE IMPUGNED ORDERS PASSED BY TH E LD. CIT (A) GOES TO PROVE THAT NOTICES FOR APPEARANCE OF TH E ASSESSEE WERE ISSUED ON 05.072017, 28.08.2017 AND 17.10.2017 IN A LL THE THREE APPEALS BUT IT IS NOWHERE RECORDED IN THE ORDER THA T IF THE NOTICES WERE SERVED UPON THE ASSESSEE OR THE NOTICES WERE R ECEIVED BACK UNSERVED. IT APPEARS THAT THE LD. CIT (A) HAS PROC EEDED TO DECIDE THE APPEALS WITHOUT GETTING THE NOTICES SERVED ON T HE ASSESSEE WHICH AMOUNTS TO DENIAL OF ADEQUATE OPPORTUNITY OF BEING HEARD. SO, WE ARE OF THE CONSIDERED VIEW THAT IN THE INTER EST OF JUSTICE, ASSESSEE IS ENTITLED TO BE PROVIDED WITH ADEQUATE O PPORTUNITY OF BEING HEARD, HENCE IMPUGNED ORDERS PASSED BY THE LD . CIT (A) ARE SET ASIDE AND REMANDED BACK TO THE LD. CIT (A) TO D ECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HARD TO THE ASSESSEE. CONSEQUENTLY, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2019. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 25 TH DAY OF FEBRUARY, 2019 TS ITA NOS.2232, 2233 & 2234/DEL./2018 7 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-I, NOIDA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.