ACIT, New Delhi V. M/s. H R Polycoats Pvt. Ltd, New Delhi

ITA 2393/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2561 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 29-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C P SINGH
• Assessee Lawyers: D K JAIN
• Keywords: Opportunity of being heard; Additional evidence
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 2393/DEL/2016 ASSESSMENT YEAR: 2012-13 ACIT, CIRCLE 11(2), VS. H.R. POLYCOATS PVT. L TD. NEW DELHI 4257/2, JAI MATA MARKET, TRI NAGAR, NEW DELHI 35 (PAN AACCH2278J) (APPELLANT) (RESPONDENT) REVENUE BY : SH. C.P. SINGH, SR. DR. ASSESSEE BY : SH. D.K. JAIN, CA & SH. KART IK JAIN, CA ORDER PER H.S. SIDHU, JM THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 25.2.2016 OF THE LD. CIT(A)-4, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) ERRED IN ADMITTING THE ADDITIONAL EVIDENCE IGNORING THE FACT THAT ASSESSEE WAS GIVEN FULL OPPORTUNITY DURING THE ASSESSMENT PROCEE DINGS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) ERRED IN DELETING T HE ESTIMATE MADE BY THE AO REJECTING BOOKS OF ACCOUNT AS THE ASSESSEE WAS NOT SUBMITTING THE DETAILS OF STOCK. 3. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS CORRECT IN HOLDING THAT THE AF FIDAVITS FILED BY THE AR REGARDING ITS ATTENDANCE AND SUBMIS SIONS 2 NOT RECORDED BY THE AO IS CORRECT AND THEREBY GRANT ING RELIEF TO THE ASSESSEE, IN SPITE OF THE FACT THAT N ONE OF THE LETTERS FILED BY THE ASSESSEE HAS THE MENTION OF TH E PREVIOUS HEARINGS AND THE FACT THE AO WAS CONSIDERA TE ENOUGH TO GRANT 4 ADJOURNMENTS TO THE ASSESSEE BACK TO BACK DURING THE COURSE OF ASSESSMENT PROCEEDINGS AN D ALSO THE FACT THAT THE ASSESSEE HAS FILED CERTAIN I NFORMATION DURING THE COURSE OF PROCEEDINGS IN THE REGULAR DAK OF THE AO.' 4. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS CORRECT IN IGNORING THE FACT T HAT THE ASSESSEE HAD FAILED TO FILE A SINGLE ORIGINAL CONFI RMATION OF THE PARTIES IN QUESTION AND ONLY PHOTOCOPIES WERE F ILED WHICH CLEARLY WERE NOT BONAFIDE EVIDENCES OR COMPLI ANCE TO THE QUESTION RAISED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS AND THEREFORE NO RELIEF COULD HAVE BEEN GRANTED TO THE ASSESSEE AND ALSO CONSIDERING THE FA CT THAT EVEN IN ADDITIONAL EVIDENCE NO PROPER CONFIRMATIONS WERE FILED AS SUCH BEFORE THE CIT(A) AND ALSO CONSIDERIN G THE STRANGE FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS CERTAIN 133(6) WERE ISSUED AND CAME BAC K UNSERVED BUT STILL THERE WAS COMPLIANCE MADE BY THE SE PARTIES BEFORE THE AO.' 5. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS CORRECT IN HOLDING THAT THE ASSESSEMENT SHOULD HAVE BEEN COMPLETED BY THE ACCEP TING THE BOOKS RESULT OF THE COMPANY BECAUSE OF PAST HIS TORY, THE ASSESSEE BEING A COMPANY AND THE VAT ASSESSMENT OF CREDIT OF TAXES WAS MADE BY COMPLETELY IGNORING THE FACT THAT NOT A SINGLE BONAFIDE CONFIRMATION OF CREDITOR S OF RAW MATERIALS AS WELL AS EXPENSES (ONLY PHOTOCOPIES) WE RE SUBMITTED EITHER BEFORE THE AO OR BEFORE THE CIT(A) IN THE 3 APPELLATE PROCEEDINGS, IN SPITE OF SEVERAL OPPORTUN ITIES GRANTED TO THE ASSESSEE.' 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS CORRECT IN NOT GIVING REASONAB LE OPPORTUNITY TO THE AO U/S. 46A FOR SUBMITTING REMAN D REPORT, ON THE SO CALLED ADDITIONAL EVIDENCES FILED BY THE ASSESSEE, WHICH HAVE NOT BEEN EVEN ADMITTED BY THE CIT(A) BY PASSING A SPEAKING ORDER U/R. 46A(2) AND ALSO WHEN THE CIT(A) ITSELF HAS NOT EXAMINED ANY OF THE ADDITIONAL EVIDENCES IN A SPEAKING MANNER TO A CONC LUSION TO GRANT RELIEF TO THE ASSESSEE. 7. THE APPELLANT CRAVES LEAVE, TO ADD, ALTER OR AME ND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF TH E HEARING. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. DR SUBMITTED THAT LD . CIT(A) HAS ERRED IN NOT GIVING REASONABLE OPPORTUNITY TO THE A O U/S. 46A FOR SUBMITTING REMAND REPORT, ON THE SO CALLED ADDITION AL EVIDENCES FILED BY THE ASSESSEE, WHICH HAVE NOT BEEN EVEN ADMITTED BY THE CIT(A) BY PASSING A SPEAKING ORDER U/R. 46A(2) AND ALSO WH EN THE CIT(A) ITSELF HAS NOT EXAMINED ANY OF THE ADDITIONAL EVIDE NCES IN A SPEAKING MANNER TO A CONCLUSION TO GRANT RELIEF TO THE ASSES SEE. HENCE, HE REQUESTED THAT THIS MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AND PASS A SPEAKING ORDER, AFTER GIVING 4 ADEQUATE OPPORTUNITY OF BEING HEARD TO THE AO BY CA LLING THE REMAND REPORT. 4. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE ORDERS OF THE LD. CIT(A) AND STATED THAT H E HAS PASSED A WELL REASONED ORDER, WHICH DOES NOT NEED ANY INTERF ERENCE. HE FURTHER SUBMITTED THAT LD. CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCES IN ACCORDANCE WITH LAW. HOWEVER, FOR THE SAKE OF CONVENIENCE, THE LD. COUNSEL FOR THE ASSESSEE HAS F ILED A PAPER BOOK CONTAINING PAGES 1-383 I.E. EXPLANATION TO GROUNDS OF APPEAL; APPLICATION FOR ADDITIONAL EVIDENCES FILED BEFORE THE CIT(A); DOCUMENTS ANNEXED TO THE APPLICATION FOR ADDITIONAL EVIDENCES BEFORE CIT(A) (A) COVER LETTER OF SUBMISSIONS FILED BEFORE THE AO (B) AFFIDAVIT BY THE AUTHORISED REPRESENTATIVE AND DIRECTOR OF TH E ASSESSEE (C) SALES TAX ASSESSMENT ORDER OF THE ASSESSEE FOR AY 2 012-13; (D) JOB WORK BILLS, CHALLANS, FUEL BILLS AND STOCK REGISTER (E) ORDER SHEET OF THE ASSESSMENT PROCEEDINGS AND NOTICES ISSUED BY THE AO . 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. AFTER PERUSING THE RELEVANT RECORDS AVAILABLE WITH US ALO NGWITH THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE PAPER BOO K FILED BY THE LD. COUNSEL FOR THE ASSESSEE WHICH ALSO CONTAINS THE AP PLICATION FOR ADDITIONAL EVIDENCES FILED BEFORE THE CIT(A) AND AN NEXURES THERETO. AFTER PERUSING THE FINDING OF THE LD. CIT(A), WE AR E OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS NOT GIVEN REASONABLE OPPO RTUNITY TO THE AO U/R. 46A FOR SUBMITTING HIS REMAND REPORT, ON THE A DDITIONAL 5 EVIDENCES FILED BY THE ASSESSEE, WHICH HAVE ALSO NO T BEEN EVEN ADMITTED BY THE CIT(A) BY PASSING A SPEAKING ORDER U/R. 46A(2), WHICH IS NOT TENABLE. THEREFORE, IN THE INTERE ST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER CALLING AOS REMAND R EPORT ON THE ADDITIONAL EVIDENCES FILED BEFORE HIM U/R 46A AND AFTER HEARING THE ASSESSEE, PASS A WELL REASONED AND SPEAKING ORDER, IN ACCORDANCE WITH LAW. 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON 07-03-2019. SD/- SD/- [O.P. KANT] (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL M EMBER DT. 07.03.2019 SR BHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES 6