M/s Jaiprakash Power Ventures Ltd., Solan V. DCIT, CPC (TDS), Ghaziabad Jurisdiction with ITO, TDS, Solan

ITA 227/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8452 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 227/CHD/2019 ASSESSMENT YEAR : 2009-10 M/S JAIPRAKASH POWER VENTURES LTD., COMPLEX OF JAYPEE NIGRIE SUPER THRMAL POWER PLANT, NIGRIE TEHSIL-SARAL, DISTT. SINGRAULI(MP). VS THE DCIT, CPC (TDS), GHAZIABAD, JURISDICTION WITH ITO (TDS), SOLAN. PAN /TAN NO. : AAACJ6297K APPELLANT RESPONDENT ! ASSESSEE BY : NONE ' ! REVENUE BY : SMT. CHANDER KANTA, SR.DR # $ % DATE OF HEARING : 10.07.2019 &'() % D ATE OF PRONOUNCEMENT : 11.07.2019 )-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 25.01.2019 OF CIT(A) , SHIMLA PERTAINING TO F.Y. 2008-09 26Q(Q1) TO F.Y. 2010-11 26Q(Q1) ON THE FOLL OWING GROUNDS. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT (APPEALS), SHIMLA HAS ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLA NT AGAINST THE ORDER OF DCIT, CPC DATED 25.01.2019. 2. THE ORDER PASSED BY THE CIT (APPEALS), SHIMLA IS LI ABLE TO QUASHED/SET-ASIDE ON THE GROUND THAT HE HAS FAILED TO ALLOW PROPER OPPORTUNI TY OF HEARING AND FOLLOW THE PRINCIPLES OF NATURAL JUSTICE BEFORE PASSING AN ORDER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT (APPEALS) HAS ERRED IN NOT APPRECIATING THE FACTS OF THE CASE SUBMITTED BE FORE HIM AND DISMISSING THE APPEAL ON THE SOLE GROUND THAT DETAILED WORKING FOR THE INTEREST AS WELL AS ADDITIONAL JUSTIFICATION REPORT WERE NOT FILED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT (APPEALS) HAS FAILED TO EXERCISE DUE DILIGENCE BEFORE PASSING THE ORDER IN AS MUCH AS THE JUSTIFICATION REPORT OF THE CPC COULD HAVE BEEN SEEN BY HE HIMSELF ON THE SYSTE M OR CALLED FOR FROM THE AO OR APPELLANT, IF CONSIDERED ABSOLUTELY ESSENTIAL BY HIM . ITA 227/CHD/2019 A.Y. 2009-10 PAGE 2 OF 3 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT (APPEALS) HAS FAILED TO APPLY HIS MIND TO THE SUBMISSIONS MADE BEFORE HI M IN AS MUCH AS GROUND NOS. 2 & 3 WERE NOT DEALT WITH BY HIM. 6. THE CIT (APPEALS) HAS ERRED IN NOT TAKING A NOTE OF AND DEALING WITH THE SUBMISSION THAT IDENTICAL ISSUE HAVE ALREADY BEEN DECIDED BY C IT (APPEALS), NOIDA, IN THE CASE OF M/S KANPUR FERTILIZERS AND CEMENT LTD., COPY OF WHICH W AS SUBMITTED BEFORE HIM. 7. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GR OUNDS, OR MODIFY THE EXISTING GROUNDS AND MAKE ORAL AND WRITTEN SUBMISSION AT THE TIME OF HEARING OF THE APPEAL. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. HOWEVER, ON A CONSIDERATION OF THE AFOREMENTIONED G ROUNDS, SPECIFICALLY GROUND NO. 2 HEREIN ABOVE, IT WAS DEEMED APPROPRIAT E TO PROCEED WITH THE PRESENT APPEAL ON THE BASIS OF THE MATERIAL AVAILAB LE ON RECORD. LD. SR.DR WAS HEARD ON THE ABOVE GROUND. 3. A PERUSAL OF THE RECORD SHOWS THAT THE RECTIFICA TION ORDER PASSED BY THE AO U/S 154 OF THE ACT WAS CHALLENGED IN APPEAL BY T HE ASSESSEE BEFORE THE CIT(A). APPARENTLY WRITTEN SUBMISSIONS WERE RELIED UPON AS IS FOUND MENTIONED IN PARA 4.1 OF THE IMPUGNED ORDER. THE LD . CIT(A) ON THE BASIS OF THE WRITTEN SUBMISSIONS FILED CONSIDERING THE SAME, REJ ECTED THE APPEAL OF THE ASSESSEE. THE GRIEVANCE OF THE ASSESSEE SUBSISTS WH EREIN APART FROM RELYING UPON IDENTICAL ISSUE HAVING BEEN CONSIDERED IN THE CASE OF M/S KANPUR FERTILIZERS & CEMENT LTD. REFERRED TO IN GROUND NO. 6. THE ASSESSEE ALSO ASSAILS THE ORDER ON LACK OF OPPORTUNITY. 4. WE FIND ON PERUSAL OF THE RECORD THAT NO DOUBT A SSESSEE BEFORE THE CIT(A) HAD RELIED UPON THE WRITTEN SUBMISSIONS, HOWEVER IT APPEARS THAT RELIANCE WAS PLACED ON THE BELIEF THAT THE CLAIM WAS ALLOWABLE. THE BELIEF WAS FOUND TO BE BASED ON MISTAKEN UNDERSTANDING OF FACTS AND LAW AS CONSIDERED BY THE CIT(A) IN THE IMPUGNED ORDER. IN THE LIGHT OF THE GROUND RAISED, WE ARE OF THE CONSIDERED VIEW THAT IN THE EVENTUALITY THE SUBMISS IONS WERE GOING TO BE CONSIDERED BY THE LD. CIT(A) TO BE NOT SUFFICIENT O R RELEVANT FOR GRANT OF RELIEF PRAYED FOR, THE SAID FACT SHOULD HAVE BEEN INTIMATE D TO THE ASSESSEE AND THE ASSESSEE OUGHT TO HAVE BEEN GIVEN AN OPPORTUNITY OF BEING HEARD AS THE RIGHT TO ARGUE APPARENTLY HAD NOT BEEN WAIVED MERELY BECA USE THE ASSESSEE BELIEVED THAT ON THE BASIS OF WRITTEN SUBMISSIONS, RELIEF WA S ALLOWABLE. ACCORDINGLY, TO ITA 227/CHD/2019 A.Y. 2009-10 PAGE 3 OF 3 SET RIGHT THE AFOREMENTIONED DEFICIT IN THE ORDER, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IMPUGNED ORDER IS SET ASIDE BACK TO TH E FILE OF THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS ADVISED TO PARTICIPATE FULLY AND FAIRL Y IN THE PROCEEDINGS BEFORE THE SAID AUTHORITY AS IN THE EVENTUALITY OF ABUSE OF TH E TRUST REPOSED, THE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS O F THE MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COUR T AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JULY,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR