Continental Papers Ltd., New Delhi., V. A.O., Hqr-I (J), New Delhi,

ITA 2370/DEL/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1003 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 17-11-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 05-07-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUKHBIR CHAUDHARY
• Assessee Lawyers: SUBODH GUPTA
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : G NEW DELHI) BEFORE SHRI C.L. SETHI, J UDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A. NO.2370/DEL./2006 (ASSESSMENT YEAR : 2002-03) M/S CONTINENTAL PAPER LTD., VS. A.O., HQR.I(J), CONTINENTAL HOUSE, NEW DELHI. 28, NEHRU PLACE, NEW DELHI. (PAN/GIR NO.) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUBODH GUPTA, REVENUE BY : SHRI SUKHBIR CHAUDHARY, .DR ORDER PER K.D. RANJAN, AM THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 20 02-03 ARISES OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, NEW DELHI. 2. ONE OF THE GROUNDS OF APPEAL RAISED BY THE ASSES SEE RELATES TO ADMISSION OF ADDITIONAL EVIDENCE WHICH HAS BEEN DECLINED BY COMM ISSIONER OF INCOME-TAX (APPEALS) FOR ADMISSION. THE FACTS OF THE CASE STATED IN BRI EF ARE THAT THE ASSESSEE COMPANY WAS NOT IN OPERATION SINCE 2002. ON BEING CONTACTED, IT WA S BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BY ONE OF THE DIRECTORS OF THE CO MPANY, SHRI P.K. MUKHERJEE THAT HE HAD RESIGNED FROM THE COMPANY IN SEPTEMBER, 2002. IT WAS ALSO STATED BY HIM THAT HE DID NOT KNOW ABOUT THE COMPANYS PRESENT STATUS. THUS, NO SPECIFIC INFORMATION COULD BE GATHERED FROM SHRI P.K. MUKHERJEE. THE ASSESSEE , THEREFORE, WAS ASKED TO FILE CERTAIN INFORMATION FOR COMPLETION OF THE ASSESSMENT. HOWE VER, NO REPLY WAS RECEIVED BY ASSESSING OFFICER. HE, THEREFORE, PROCEEDED TO COM PLETE THE ASSESSMENT U/S 144 OF THE ACT. 3. FROM THE PERUSAL OF DETAILS AVAILABLE IN THE RET URN OF INCOME, ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD NOT MADE ANY SALES DUR ING THE PERIOD UNDER CONSIDERATION. I.T.A. NO.2370/DEL./2006 (A.Y. : 2002-03) 2 THEREFORE, THE EXPENSES CLAIMED WERE NOT ALLOWABLE. THE ASSESSING OFFICER ALSO NOTED THAT SINCE THE ASSESSEE HAD SHOWN UNSECURED LOANS A T RS.4,43,04,536/- AND LOANS AND ADVANCES AT RS.20,78,759/-. THE ASSESSING OFFICER DISALLOWED THE EXPENSES CLAIMED AT RS.7,70,145/- AND ADDED THE AMOUNT ON ACCOUNT OF LO ANS AND ADVANCES OF RS.20,78,759/- AND UNSECURED LOANS OF RS.4,43,04536. 4. BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), THE ASSESSEE FURNISHED CERTAIN INFORMATION AS ADDITIONAL EVIDENCE WHICH WAS NOT AD MITTED BY COMMISSIONER OF INCOME- TAX (APPEALS) . THE COMMISSIONER OF INCOME-TAX (AP PEALS) AS REGARDS THE ADDITION OF RS.4,43,04536/- HELD THAT THE ASSESSEE DESPITE OF H AVING BEEN GIVEN SEVERAL OPPORTUNITY DID NOT FURNISH DETAILS AND, THEREFORE, SAME WERE N OT TO BE ADMITTED. SHE ACCORDINGLY REJECTED THE CLAIM OF THE ASSESSEE AND UPHELD THE A DDITION. LIKEWISE, THE OTHER ADDITIONS WERE ALSO UPHELD. 5. BEFORE US, LD.AR OF THE ASSESSEE SUBMITTED THAT NO NOTICE OF HEARING WAS EVER SERVED IN THE NAME OF THE ASSESSEE AT HIS SPECIFIE D ADDRESS AS PER MEMORANDUM OF APPEAL. LD.AR OF THE ASSESSEE ALSO SUBMITTED THAT THE MATER WAS PENDING BEFORE COMPANY LAW BOARD FOR RESOLUTION OF DISPUTES HAVING BEEN ARISEN AMONGST PROMOTERS OF THE COMPANY RIGHT FROM 2002. THE ASSESSEE FILED CO PIES OF APPLICATION FILED BEFORE COMPANY LAW BOARD AND ORDER PASSED IN SUPPORT OF TH E CONTENTION THAT BECAUSE OF THE PROCEEDINGS BEFORE COMPANY LAW BOARD, THE ASSESSEE IS BUSINESS WAS CLOSED. HE ALSO SUBMITS THAT THE MATTER HAS BEEN NOW RESOLVED. ON THE OTHER HAND, LD.DR SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF THE ASSESSING OFFICER, IT IS CLEA R THAT THE ASSESSEE HAS NOT APPEARED BEFORE HIM AND HE HAS ADDED THE AMOUNT ON ACCOUNT O F EXPENSES, THE LOANS AND ADVANCES AND UNSECURED LOANS TO THE TOTAL INCOME OF THE ASS ESSEE. THE ASSESSEE HAD FILED COPY OF PROCEEDINGS BEFORE COMPANY LAW BOARD. THE COMMISSI ONER OF INCOME-TAX (APPEALS) HAS NOT ADMITTED THE ADDITIONAL EVIDENCE FILED BEFO RE HER. IN VIEW OF ABOVE FACTS, IN OUR CONSIDERED OPINION, THE ISSUE IS TO BE DECIDED AFRE SH ON THE BASIS OF EVIDENCE FURNISHED BY THE ASSESSEE BEFORE COMMISSIONER OF INCOME-TAX (APP EALS) AND ANY OTHER INFORMATION I.T.A. NO.2370/DEL./2006 (A.Y. : 2002-03) 3 REQUIRED BY THE ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO PASS ASSESS MENT ORDER AFRESH AFTER HEARING THE ASSESSEE. LD.AR OF THE ASSESSEE HAS GIVEN TO THE UN DERTAKING THAT HE WOULD APPEAR BEFORE THE ASSESSING OFFICER WITHIN THE PERIOD OF THREE MO NTHS FROM THE DATE OF ORDER RECEIVED BY HIM FOR THE PURPOSE OF FIXATION OF THE CASE BY T HE ASSESSING OFFICER. HE HAS ALSO UNDERTAKEN TO COOPERATE WITH THE ASSESSING OFFICER FOR COMPLETION OF ASSESSMENT. THE ASSESSING OFFICER IS DIRECTED TO PASS A SPEAKING OR DER AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN OPEN COURT ON 20.11.2009. SD/- SD/- (C.L. SETHI) (K.D. RANJAN) JUDICIAL MEMBER. ACCOUNTANT MEMBER DATED, NOV. .20, 2009. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-V,NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. BY ORDER (ITAT, NEW DELHI). I.T.A. NO.2370/DEL./2006 (A.Y. : 2002-03) 4