M/s Mangalchand Telecoms Pvt. Ltd., V. Astt. Commissioner of Income Tax-4, Kanpur

ITA 253/LKW/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0733 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-07-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P SINGH
• Assessee Lawyers: MOHIT BHARATIYA ACA
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• Section: 43B; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.253/LKW/2015 ASSESSMENT YEAR:2004-05 M/S MANGALCHAND TELECOMS (P) LTD. 14, POLLOCK STREET KOLKATA V. ACIT-4 KANPUR TAN/PAN:AACCM1085G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. MOHIT BHARATIYA, ACA RESPONDENT BY: SHRI. T.P. SINGH, D.R. DATE OF HEARING: 22 07 2015 DATE OF PRONOUNCEMENT: 24 07 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE AO IS DENIAL OF NATURAL JUSTICE, SINCE ADEQUATE OPPORTUNITIES OF BEING HEARD WERE NOT PROVIDED TO THE APPELLANT. 2. THE AO WRONGLY INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT, WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO DISCHARGE ITS ONUS, HENCE ADDITIONS OF RS.1,85,97,508/- BE DELETED IN FULL. 3. THE AO MISINTERPRETED THE PROVISIONS OF SECTION 43B OF THE ACT, AND ADDED THE AMOUNTS OF INTEREST PAYABLE AND PRINCIPAL AMOUNT OF TERM LOAN, THOUGH NOT DEBITED TO P&L A/C, HENCE ADDITION OF RS.1,11,53,472/- BE DELETED IN FULL. 4. THE AO WRONGLY INTERPRETED THE PROVISIONS OF SECTION 41(1) OF THE ACT, AND ADDED RS.54,06,686/-AND RS.24,84,510/- WRONGLY, :- 2 -: HENCE THESE ADDITIONS BEING BAD IN LAW BE DELETED IN FULL. 5. THE AO HAVING CONSERVATIVE AND PRESUMPTIVE APPROACH INTERPRETED THE LATE DELIVERY CHARGES AS PENALTY IN NATURE AND UNRELATED TO BUSINESS HENCE ADDITIONS OF RS.20,65,270/- BE DELETED IN FULL. 6. THE AO, WITHOUT GIVING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE, BY HIS OWN ADMISSION AND SUBMISSION, DISALLOWED THE DEPRECIATION ON P& L, HENCE THE CLAIM ON THIS ACCOUNT OF RS.12,33,769/- BE ALLOWED IN FULL. 7. THE AO BY IGNORING THE PROVISIONS OF SECTION 43B ARBITRARILY DISALLOWED RS.2,94,455/- ON ACCOUNT OF LATE PAYMENT OF PF & ESI, HENCE THIS CLAIM OF RS.2,94,455/- BE ALLOWED IN FULL. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT NO NOTICE OF HEARING WAS RECEIVED FROM THE OFFICE OF THE LD. CIT(A) AND THE LD. CIT(A) HAS FINALLY DECIDED THE APPEAL EX- PARTE AGAINST THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FOR ADJUDICATION OF THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS FRAMED THE ASSESSMENT EX-PARTE UNDER SECTION 144 OF THE INCOME-TAX ACT, 1961, AGAINST WHICH AN APPEAL WAS FILED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE QUA THE ASSESSEE. FROM A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A), WE FIND THAT THERE IS NO SPECIFIC FINDING OF THE LD. CIT(A) WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THEREFORE, IT APPEARS THAT THE LD. CIT(A) HAS DISPOSED :- 3 -: OF THE APPEAL WITHOUT GETTING THE NOTICE SERVED UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO HIS FILE FOR RE-ADJUDICATION OF THE APPEAL. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:24 TH JULY, 2015 JJ:2207 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR