ACIT, New Delhi V. Shri Chatan Das Lachman Das, Delhi

ITA 2247/DEL/2009

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7221 (ITAT-DELHI)
• Duration Of Justice: 9 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-06-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 26-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P K MISHRA
• Section: 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NOS. 2247 TO 2253/DEL/2009 ( ASSESSMENT YEARS: 2000-01 TO 2006-07) ACIT, CENTRAL CIRCLE- 17, JHANDENWALA NEW DELHI. VS SH. CHATAN DAS LACHHMAN DAS, 5162, KOLHAPUR ROAD, DELHI. PAN NO: AAAFC0095K REVENUE BY MS. RACHNA SINGH, CIT DR ASSESSEE BY SH. P.K.MISHRA, CA ORDER PER BENCH : REVENUE PREFERRED ALL THESE APPEALS CHALLENGING THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)- II, NEW DELHI (LD. CIT(A)) FOR THE ASSESSMENT YEA RS 2000-01 TO 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I. E., CHETAN DAS LACHHMANDAS IS A PARTNERSHIP FIRM ENGAGED IN TH E DATE OF HEARING 05.07.2018 DATE OF PRONOUNCEMENT 06 .07.2018 ITA NUMBERS 2247 TO 2253/DEL/2009 2 BUSINESS OF HING. THEY CARRY THE BUSINESS OF PRODUC ING EDIBLE HING BY PROCESSING OF RAW HING. THERE WAS A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (THE ACT) ON 13/12/2005 WHEREIN CERTAIN EVIDENCES WERE FOUND SUG GESTING UNDER INVOICING OF SALES AND PURCHASES. CONSEQUENTL Y ASSESSMENT PROCEEDINGS WERE TAKEN UP FOR THE 6 YEAR S OF FALLING IN THE BLOG RELEVANT TO THE DATE OF SEARCH AND ALSO FOR THE YEAR UNDER CONSIDERATION IN WHICH THE SEARCH TO OK PLACE I.E., 2000-01 TO 2006-07. AFTER FOLLOWING THE PROCE DURE ESTABLISHED UNDER LAW THE INCOME OF THE ASSESSEE WA S RECOMPUTED BY THE LD. AO BY MAKING CERTAIN ADDITION S ON ACCOUNT OF SUPPRESSING SALE VALUE OF HING, SUPPRESS ING SALE VALUE OF COMPOUND HING, AND SUPPRESSING OF INPUT OU TPUT RATIO OF PROCESS OF HING. FOR THE ASSESSMENT YEARS 2001-02 TO 2006-07 THERE WAS ADDITION ON ACCOUNT OF DEPRECATIO N ON FOREIGN CAR ALSO. 3. WHEN THE ASSESSEE PREFERRED APPEALS, LD. CIT(A) DIRECTED CERTAIN DELETIONS OF ADDITIONS WHILE SUSTAINING A P ORTION THEREOF. BOTH REVENUE AND THE ASSESSEE PREFERRED AP PEALS BEFORE THE TRIBUNAL IN ITA NOS. 2247 TO 2253/DEL/20 09 AND ITA NOS. 2673 TO 2679/DEL/2009 RESPECTIVELY. A COOR DINATE BENCH OF THIS TRIBUNAL BY WAY OF A COMMON ORDER DA TED 20/11/2009 ALLOWED THE APPEALS OF THE ASSESSEE IN P ART AND DISMISSED THE APPEALS OF THE REVENUE. 4. CHALLENGING THE DISMISSAL OF THE REVENUE APPEALS , REVENUE APPROACHED THE HIGH COURT IN ITA NO. 2021/2 010 ITA NUMBERS 2247 TO 2253/DEL/2009 3 AND BATCH OF CASES. THE HONBLE HIGH COURT BY ORDER DATED 07/08/2012 SET ASIDE THE ORDER OF THE TRIBUNAL FOR ALL THE YEARS UNDER APPEALS, AND REMANDED THE APPEALS FOR D ISPOSAL AFRESH AND TO DECIDE THEM ACCORDING TO LAW. 5. TODAY WE HEARD THE COUNSEL ON EITHER SIDE. IT IS THE SUBMISSION ON BEHALF OF THE ASSESSEE THAT THE ASSES SMENTS WERE FRAMED BY THE LD. AO WITHOUT AFFORDING AN OPPO RTUNITY TO THE ASSESSEE TO PUT FORTH THEIR CASE AND TO SUBS TANTIATE THEIR CLAIM BY PRODUCING EVIDENCE. IT IS ALSO SUBMI TTED ON BEHALF OF THE ASSESSEE THAT NEITHER THE DOCUMENTS T HAT WERE SEIZED AT THE TIME OF SEARCH NOR THE STATEMENT OF O NE SH. JK KHANNA @ TAINU, THE BROKER RECORDED ON 13/12/2005 W ERE CONFRONTED TO THE ASSESSEE AT ANY POINT OF TIME DUR ING ASSESSMENT PROCEEDINGS. HE, THEREFORE, SUBMITTED TH AT IT IS A FIT CASE TO AFFORD AN OPPORTUNITY TO THE ASSESSEE T O SUBMIT THEIR CLAIM SUPPORTED BY EVIDENCE BEFORE THE LEARNE D ASSESSING OFFICER SO THAT THE MATTER COULD BE DISPO SED OFF ON MERITS AND THE JUST TAX LIABILITY OF THE ASSESSEE C OULD BE ASSESSED. 6. INSOFAR AS THE ALLEGATION THAT THE ASSESSMENT OR DER IS AN EXPARTE ORDER IS CONCERNED, THE REVENUE DOES NOT DI SPUTE THE SAME. LD. DR AFTER VERIFICATION OF THE ASSESSMENT O RDER SUBMITTED THAT IT IS SO MENTIONED IN PARAGRAPH NO. 2 OF THE ORDER ALSO. 7. WE HAVE GONE THROUGH THE RECORD. IN ALL THESE MA TTERS THE LD. AO AT THE PARAGRAPH NO. 2 OF HIS ORDER RECO RDED THAT ITA NUMBERS 2247 TO 2253/DEL/2009 4 IN SPITE OF NOTICES UNDER SECTION 142(1) OF THE ACT AND ALSO 143(2) OF THE ACT ALONGWITH QUESTIONNAIRE ASKING TH E ASSESSEE TO COMPLY WITH VARIOUS DETAILS/REPLACE/ CLARIFICATI ON, NO COMPLIANCE WAS MADE BY THE ASSESSEE, WHICH CLEARLY GOES TO SHOW THAT THE ASSESSEE HAS SCANT REGARD FOR THE PRO CESS OF LAW. CONSIDERING THE NON-COMPLIANCE AND THE FACTS T HE LD. AO PROCEEDED EXPARTE TO FRAME THE ASSESSMENT ON THE BASIS OF THE RECORD. IT IS, THEREFORE, CLEAR THAT THERE I S NO PARTICIPATION OF THE ASSESSEE DURING ASSESSMENT PRO CEEDINGS. FURTHER IT IS NOT THE CASE OF THE REVENUE THAT BEFO RE FRAMING THE ASSESSMENT FOR ALL THESE YEARS EITHER THE SEIZE D MATERIAL OR THE STATEMENT OF MR JK KHANNA WAS EITHER FURNISH ING TO THE ASSESSEE OR THE ASSESSEE IS CONFRONTED WITH THE CONTENTS OF THE SAME TO EXPLAIN THEIR VERSION. 8. LD. AR SUBMITTED THAT GIVEN AN OPPORTUNITY THE A SSESSEE IS READY AND WILLING TO COOPERATE WITH THE LD. AO F OR DETERMINATION OF THEIR JUST TAX LIABILITY. WE HAVE HEARD LD. DR ALSO. THERE IS NO DENIAL OF FACT THAT THE IMPUGNED ORDERS ARE EX PARTE ORDERS. SO ALSO THERE IS NO DENIAL OF THE FACT THAT THE ASSESSEE WAS NOT FURNISHED WITH THE SEIZED MATERIAL OR THE STATEMENT OF THE BROKER NOR WERE THEY CONFRONTED WI TH THE SAME SEEKING EXPLANATION ON THE SAME. 9. HAVING HEARD LD. AR ON EITHER SIDE AND HAVING RE GARD TO THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS SET OF APPEALS, WE ARE OF THE CONSIDERED OPINION THAT THE ENDS OF J USTICE WOULD BE MET BY ALLOWING AN OPPORTUNITY TO THE ASSE SSEE TO ITA NUMBERS 2247 TO 2253/DEL/2009 5 PUT FORTH THEIR CASE BEFORE THE LD. AO WITH REFEREN CE TO THE EVIDENCE, IF ANY, AVAILABLE IN THEIR CUSTODY. WITH THIS VIEW OF THE MATTER WE SET ASIDE THE ORDERS OF THE AUTHORITI ES BELOW AND REMAND THE MATTER TO THE FILE OF THE LD. AO FOR FRAMING THE ASSESSMENT FOR ALL THESE YEARS AFRESH AFTER AFF ORDING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. GROUNDS ARE ANSWERED ACCORDINGLY. 10. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06.07.2018 SD/- SD/- (R.S. SYAL) (K. NARSIMHA CHAR Y) VICE PRESIDENT JUDICIAL ME MBER DATED: 06.07.2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NUMBERS 2247 TO 2253/DEL/2009 6 DATE OF DICTATION 03.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 06.07.18 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 06.07.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 06.07.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 06.07.18 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 06. 07.18 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER