M/s Sachedeva & Songs, Amritsar. V. The Assistant Commissioner of Income Tax, Amritsar.

ITA 227/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0745 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-05-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESHKUMAR TAKYAR
• Assessee Lawyers: PADAM BAHL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.227(ASR)/2016 ASSESSMENT YEAR:2002-03 PAN: M/S. SACHDEV & SONS INDUSTRIES VS. ASSTT. COMMR. OF INCOME TAX, PVT. LTD., 17-A, AMRITSAR CANTT. CIRCLE-5, AMRITSAR. AMRITSR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PADAM BAHL, CA RESPONDENT BY: SH. UMESHKUMAR TAKYAR, DR DATE OF HEARING: 01/06/2016 DATE OF PRONOUNCEMENT: 01/06/2016 ORDER PER A.D. JAIN, JM THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2002-03, AGAINST THE ORDER, DATED 26.02.2016, PASSED BY THE LD. CIT(A2, AMRITSAR. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL: 1(A) THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY E RRED IN NOT ALLOWING A PROPER OPPORTUNITY OF BEING HEARD. (B) THAT THE REMAND REPORT OF THE AO DATED 07.09 .2006 WAS CONFRONTED TO THE ASSESSEE IN FEB., 209 AND THE ORD ER HAS BEEN PASSED ON 26.02.2016 WITHOUT WAITING FOR THE R ESPONSE OF THE ASSESSEE. 2. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.15,27,55,020/- ON ACCOUNT OF ADJUSTM ENT OF STOCK DUE TO SHORTAGE FOUND AT THE TIME OF PHYSICAL INSPECTION OF STOCK AND IGNORING THE ASSESSEE WAS A N EOU. ITA NO.227(ASR)/2016 A.Y. 2002-03 2 3. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.4,31,820/- ON ACCOUNT OF ALLEGED SA LES OUTSIDE THE BOOKS. 4. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.1,74,547/- ON ACCOUNT OF ALLEGED LOW ER YIELD OF RICE BRAN AND THIN PHAK AND ITS ALLEGED SALES OUTSI DE THE BOOKS. 5. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.2,12,03,000/- ON ACCOUNT OF SALES ON SYRIA EXPORT ORDER W/OFF DURING THE YEAR ON THE GROUND TH AT IT DOES NOT PERTAIN TO THIS YEAR. 6. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.1,47,60,813/- ON ACCOUNT OF RECEIVAB LES W/OFF WHICH WERE FOUND TO BE NOT RECOVERABLE BY THE ASSES SEE. 7. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN RE STRICTING THE DEPRECIATION ON TRUCKS TO 25% INSTEAD OF 40% CL AIMED BY THE ASSESSEE AND MAKING AN ADDITION OF RS.21,954/-. 8. THAT THE LD. CIT(A)-2, AMRITSAR HAS GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ACIT, CIRCLE-1, IN MA KING AN ADDITION OF RS.1,85,000/- ON ACCOUNT OF DISALLOWANC E OF PRELIMINARY EXPENSES WRITTEN OFF. 2. THIS APPEAL WAS HEARD ON 31.05.2016. WHILE DICTA TING THE MATTER, IT WAS SEEN THAT THE FOLLOWING OBSERVATION OF THE L D. CIT(A) AT PAGE 9 OF THE IMPUGNED ORDER IS IN DIRECT OPPOSITION TO GRO UND NO. 1(B) TAKEN BY THE ASSESSEE, WHEREIN THE ASSESSEE HAS STATED THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT WAITING FOR THE ASSESSEES RESPONSE TO THE AOS REMAND REPORT: ITA NO.227(ASR)/2016 A.Y. 2002-03 3 THE COPY OF THE REMAND REPORT WAS FORWARDED TO THE APPELLANT FOR ITS COMMENTS WHICH WERE RECEIVED VIDE LETTER DATED- WHEREIN THE APPELLANT MAINLY REITERATED WHAT WAS STATED IN THE WRITTEN SUBMISSIONS. 3. ACCORDINGLY, THE APPEAL WAS REFIXED. THE LD. CIT (A)S RECORD WAS CALLED FOR, WHICH HAS BEEN PRODUCED BY THE LD. DR. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE ASSESSEES STAND THAT THE AOS REMAND REPORT OF 07.09.2006 WAS CONFRONTED TO THE ASSESSE E ONLY IN FEBRUARY, 2016 AND THE LD. CIT(A) PASSED THE IMPUGNED ORDER O N 26.02.2016 WITHOUT WAITING FOR THE ASSESSEES RESPONSE TO THE AOS SAID REMAND REPORT. 4. THOUGH IN THE IMPUGNED ORDER, AS ABOVE, THE LD. CIT(A) HAS OBSERVED THAT THE ASSESSEES RESPONSE TO THE AOS R EMAND REPORT WAS RECEIVED, THE LD. DR COULD NOT SHOW FROM THE LD. CIT(A)S RECORD ANY SUCH REPLY OF THE ASSESSEE TO HAVE BEEN RECEIVED IN THE OFFICE OF THE CIT(A). PERTINENTLY, NO DATE OF THE ASSESSEES ALLE GED REPLY HAS BEEN MENTIONED BY THE LD. CIT(A). RATHER, LD. CIT(A) HA S OBSERVED THAT ..COMMENTS WHICH WERE RECEIVED VIDE LETTER DATED -. SO, THIS GRIEVANCE OF THE ASSESSEE IS JUSTIFIED. IN THE ABS ENCE OF ANY REPLY OF THE ASSESSEE TO THE AOS REMAND REPORT, THE ASSESSEE IS CORRECT IN CONTENDING THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER WITH OUT AWAITING THE ASSESSEES RESPONSE TO THE AOS REMAND REPORT DATE D 07.09.2006. THEREFORE, EVIDENTLY, NO PROPER OPPORTUNITY OF BEIN G HEARD HAS BEEN ALLOWED TO THE ASSESSEE AND THE IMPUGNED ORDER HAS BEEN PASSED IN ITA NO.227(ASR)/2016 A.Y. 2002-03 4 VIOLATION OF THE NATURAL JUSTICE PRINCIPLE OF AUDI ALTEREM PARTEM ACCORDINGLY, GROUND NO. 1 IS ACCEPTED. 5. THE APPEAL IS, THUS, REMITTED TO THE LD. CIT(A) TO BE DECIDED AFRESH, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUA TE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SH ALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). 6. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/06/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 01/06/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SACHDEV & SONS INDUSTRIES P.LTD. ASR 2. THE ACIT CIR.5, ASR 3. THE CIT(A)-2, ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (