M/s. Super Cassettes Industries Pvt. Ltd., Noida V. M/s. DCIT (TDS), Noida

ITA 2424/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3368 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KR SHARMA
• Keywords: Opportunity of being heard
• Section: 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. L. P. SAHU, ACCOUNTANT MEMBER ITA NO. 2424/DEL/2016 (ASSESSMENT YEAR: 2011-12) ASSESSEE BY : SH. HIREN MEHTA, CA DEPARTMENT BY : SH. ANIL KR. SHARMA, SR. DR DATE OF HEARING : 16.11.2017 DATE OF PRONOUNCEMENT : 20.11.2017 O R D E R PER BHAVNESH SAINI, J.M: 1. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, NOIDA, DATED 29.02.2016 FOR ASSESS MENT YEAR 2011- 12 U/S 201(1)/201(1A) OF THE IT ACT ON THE FOLLOWIN G GROUNDS. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY LD. COMMISSION ER OF INCOME TAX, (APPEALS) -1 IS BAD IN LAW AND CONTRARY TO THE FACTS OF THE CASE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ORDER IS VOID AB-INITIO BEING ORDER WAS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-1 N OIDA, WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS )- 1 NOIDA, ERRED IN CONFIRMING THE ADDITION TREATING B US HIRING CHARGES AT PAR WITH THE RENT PAID FOR PLANT & MAC HINERY' THUS MISCONSTRUED THE PROVISION AND CHARGED TDS @ 2 % U/S 1941 OF THE ACT, AS THIS IS A CONTRACT OF SERV ICE NOT SUPER CASSETTES INDUSTRIES PVT. LTD. PLOT NO. 1, FILM CENTRE SECTOR-16A, NOIDA UP. VS D CIT (TDS) ROOM NO. 503, AYAKAR BHAWAN A-2D, SECTOR-24 NOIDA GIR/PAN: AABC S4712P / (APPELLANT) /(RESPONDENT) 2 ITA NO. 2424/DEL/2016 LEASE AND THEREBY WORKING OUT A SHORT DEDUCTION O F RS. 6.168/- ALONGWITH CONSEQUENTIAL INTEREST OF RS. 2,5 09/- U/S 201(1 A) AGGREGATING TO RS. 8,677/-. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS )- 1 NOIDA, ERRED IN CONFIRMING THE ADDITION TREATING A MC FOR MAINTENANCE OF COMPUTERS WITH SPARES AT PAR WITH T HE PROFESSIONAL SERVICES' THUS MISCONSTRUED THE PROVI SION AND CHARGED TDS @ 10% U/S 194J OF THE ACT, AS THIS IS A MAINTENANCE WITH SPARES NOT PROFESSIONAL & TECH NICAL SERVICES AND THEREBY WORKING OUT A SHORT DEDUCTION OF RS. 1,84.225/- ALONGWITH CONSEQUENTIAL INTEREST OF RS. 66,321/- U/S 201(1 A) AGGREGATING TO RS. 2,50,546/- . 2. WE HAVE HEARD LD. REPRESENTATIVE OF BOTH THE PARTIE S. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED TH AT THE ORDER OF THE LD. CIT(A) IS VOID AB INITIO BECAUSE IT WAS PAS SED WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. HE HAS REFERRED TO THE PAGE 1 OF THE PAPER BOOK WHICH IS ADJOURNMENT APPLICATION DAT ED 05.02.2016 FILED BEFORE LD. CIT(A)-I, NOIDA, RECEIV ED ON THE SAME DAY HAVING STAMP OF THE OFFICE OF LD. CIT(A) IN WHI CH HE HAS PRAYED FOR ADJOURNMENT AFTER 10.03.2016. LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT AFTER MOVING THE APPLICATION FOR ADJ OURNMENT, NO NOTICE HAVE BEEN SERVED UPON ASSESSEE AND APPEAL HA S BEEN DECIDED ON 29.02.2016 WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN VIEW OF THE ABOVE, IT IS CLEAR THAT WHEN ASSESS EE REQUESTED FOR ADJOURNMENT AFTER 10.03.2016, LD. CIT(A) SHOULD NOT HAVE DECIDED THE APPEAL OF THE ASSESSEE PRIOR TO IT ON 2 9.02.2016, OR HE SHOULD HAVE SERVED ANOTHER NOTICE UPON ASSESSEE TO SHOW HIS INTENTION FOR DISPOSAL OF THE APPEAL PRIOR TO THE D ATE SOUGHT BY THE ASSESSEE. IT, THEREFORE, APPEARS LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE 3 ITA NO. 2424/DEL/2016 ASSESSEE AND THUS VIOLATED PRINCIPLES OF NATURAL JU STICE. THE ORDER OF THE LD. CIT(A) CANNOT BE SUSTAINED IN LAW. 4. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF TH E CIT(A)-I, NOIDA AND RESTORE THE APPEAL OF ASSESSEE TO HIS FIL E WITH DIRECTIONS TO RE-DECIDE APPEAL OF THE ASSESSEE ON MERITS BY GI VING REASON SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.11.2017. SD/- SD/- (L. P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 20.11.2017 @M!T