M/s. Halwasiya Properrties Pvt.Ltd., Lucknow V. Addl.Commissioner of Income Tax, Lucknow

ITA 228/LKW/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70554 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 27-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI S.K. YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.228/LKW/2012 ASSESSMENT YEAR: 2008-09 HALWASIYA PROPERTIES PVT. LTD. VS. ADDL. COMMISS IONER OF INCOME TAX- 1, HALWASIYA COURT, RANGE-3, LUCKNOW. HAZRATGANJ, LUCKNOW. (PAN: AAACH 9708 D). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAURABH GUPTA, C.A. RESPONDENT BY : SHRI ALOK MITRA, D.R. DATE OF HEARING : 17.09.2013 DATE OF PRONOUNCEMENT : 18.09.2013 ORDER PER SHAMIM YAHYA, ACCOUNTNT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER OF LD. CIT(A)-I, LUCKNOW DATED 29.02.2012 AND PERTAINS TO A.Y. 2008- 09. 2. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER :- 1) THAT THE ID. CIT(A) IS NOT JUSTIFIED IN DECIDIN G THE APPEAL EX-PARTE FOR THE REASONS WHICH ARE CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN L AW. 2) THAT THE LD. CIT(A) SHOULD HAVE DECIDED THE APPE AL ON MERITS AND IS WRONG IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHICH IS ERRONEOUS ON FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW. 2 ITA NO.228/LKW/2012 A.Y. 2008-09 3) THAT IN ANY VIEW OF THE MATTER, THE LD. CIT(A) I S NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.89,7 8,387/-. MADE BY THE ASSESSING OFFICER BY TREATING THE ADVAN CES/ REALISATION OF EARLIER YEAR'S SUNDRY DEBTORS AS CONTRACTUAL RECEIPTS AND SUBJECTING THE SAME TO TA X. 4) THAT THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION OF RS.L6,15,990/- MADE BY THE ASSESSING OF FICER BY WAY OF DISALLOWANCE OF INTEREST WHICH IS CONTRAR Y TO FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN L AW. 5) THAT IN ANY VIEW OF THE MATTER, THE LD. CIT(A) IS NOT JUSTIFIED IN REJECTING THE ADJOURNMENT SOUGHT B Y THE APPELLANT IN DECIDING THE APPEAL EX-PARTE MORE PARTICULARLY WHEN THE COUNSEL OF THE APPELLANT WAS DULY PRESENT BEFORE HIM AND THERE WAS NO REASON FOR HIM NOT TO GRANT SHORT ADJOURNMENT. 6) THAT THE ORDER PASSED BY THE LD. CIT(A) IS WITHO UT PROPER OPPORTUNITY AND BAD IN LAW. 7) THAT THE ORDER PASSED BY THE LD. CIT(A) IS AGAIN ST THE MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 8) THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. IN THIS CASE THE A.O. MADE ASSESSMENT UNDER SECT ION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) MAKING THE FO LLOWING ADDITIONS:- DIFFERENCE IN CONTRACTUAL RECEIPTS ADMITTED AND AS EVIDENT FROM FORM NO.16A RS.89,78,387/- DISALLOWANCE OUT OF CLAIM FOR INTEREST ON ACCOUNT O F DIVERSION OF INTEREST BEARING FUNDS TO GROUP CONCER N RS.16,15,990/- 4. UPON ASSESSEES APPEAL, THE LD. CIT(A) NOTED THA T NUMBER OF NOTICES HAVE BEEN ISSUED TO THE ASSESSEE BUT THE ASSESSEE HAS FA ILED TO RESPOND. THE LD. CIT(A) PROCEEDED TO SUMMARILY AFFIRM THE ACTION OF THE A.O . AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 3 ITA NO.228/LKW/2012 A.Y. 2008-09 5. WE HAVE HEARD BOTH THE LD. COUNSELS AND PERUSED THE RECORDS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E HAS NOT BEEN GIVEN PROPER OPPORTUNITY OF BEING HEARD. FURTHERMORE, HE POINTE D OUT THAT THE LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER. HENCE, HE PRAYED THAT THE MATTER MAY BE REMITTED TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUE AFRESH. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. W E FIND THAT IN THIS CASE THE LD. CIT(A) HAS SUMMARILY AFFIRMED THE ACTION OF THE A.O. HE HAS NOT PASSED A SPEAKING ORDER AND HAS NOT PROPERLY ADJUDICATED THE ISSUE. IT IS SETTLED LAW THAT EVEN ADMINISTRATIVE ORDERS HAVE TO BE CONSISTENT WI TH THE RULES OF NATURAL JUSTICE. IN THESE CIRCUMSTANCES, WE REMIT THE ISSUE TO THE F ILE OF LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO PROPERLY ADJUDICATE THE ISSUE AND PA SS A SPEAKING ORDER AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 18.09.2013) SD/- SD/- (S.K. YADAV) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 18.09.2013 PBN/* 4 ITA NO.228/LKW/2012 A.Y. 2008-09 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) 4. CIT 5. D.R. ASSISTANT REGISTER