M/s. Oxigen Services India Pvt. Ltd., Delhi V. ACIT, New Delhi

ITA 2674/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69312 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-10-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 01-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RENUKA JAIN GU PTA
• Assessee Lawyers: V K GARG
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

ITA NO. 2674/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER I.T.A. NO. 2 674 /DEL/201 2 A.Y. : 2006-07 M/S OXIGEN SERVICES INDIA PVT. LTD., G-4, COMMUNITY CENTRE, C-BLOCK, NARAINA VIHAR, DELHI 110 028 (PAN: AABCI405K) VS. A CIT. CIRCLE - 1 3(1) , NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. ANIL CHOPRA, FCA & SH. V.K. GARG, ADV. DEPARTMENT BY : MRS. RENUKA JAIN GUPTA, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-X, NEW DEL HI DATED 13/17.5.2010 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- I) THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT AFFORDING PROPER LAWFUL OPPORTUNITY. AS SUCH THE ORDER OF THE LD. CIT(A) IS AGAINST THE PRINCIPLES OF EQUITY AND NATURAL JUSTICE AND DESERVES TO BE QUASHED. ITA NO. 2674/DEL/2012 2 II) THAT THERE WAS NO LAWFUL SERVICE OF NOTICE FOR HEARING OF APPEAL ON THE APPELLANT. AS SUCH, THE ORDER UNDER APPEAL DESERVES TO BE SET ASIDE AND QUASHED. III) THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT DELETING THE ADDITION OF RS. 12,02,833/- BEING THE AMOUNT OF EXCHANGE FLUCTUATION LOSS ON REVENUE ACCOUNT PROVIDED AT THE YEAR END. LOSS SUFFERED BY THE ASSESSEE ON ACCOUNT OF FLUCTUATION IN THE RA TE OF FOREIGN EXCHANGE AS ON DATE OF THE BALANCE SHEET IS AN ITEM OF EXPENDITURE ADMISSIBLE UNDER SECTION 37(1)/28 OF THE I.T. ACT, 1961. THE LD. CIT(A) HAS ERRED IN NOT ALLOWED THE LOSS IN TOTO. IV) THAT THE ORDER UNDER APPEAL AND ASSESSMENT AS MADE ARE AGAINST LAW AND FACFS OF THE CASE INVOLVED. V) THAT THE APPELLANT RESPECTFULLY CRAVES LEAVE TO ADD, AMEND, ALTER AND / OR FOREGO ANY GROUND(S) AT OR BEFORE THE TIME OF HEARING. VI) THAT THE GROUNDS OF APPEAL AS HEREIN ARE WITHO UT PREJUDICE TO EACH OTHER. 3. IN THIS CASE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE I.T. ACT ON 06.11.2008. IN THE ASSESSMENT ORDE R SEVERAL DISALLOWANCES WERE MADE. THEY RELATE TO DISALLOWAN CE OF FOREIGN EXCHANGE LOSS; DISALLOWANCE OF EXCESS DEPRECIATION OF UPS; DISALLOWANCE OF LATE TDS. THE TOTAL INCOME ASSESSED WAS RS. 10,81,86,116/-. ITA NO. 2674/DEL/2012 3 4. AGAINST THE ABOVE ASSESSMENT ORDER THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). LD. CIT(A) IN HIS APPELLATE ORDER NOTED THAT SEVERAL NOTICES WERE SENT TO THE ASSESSEE, BUT THER E WAS NO RESPONSE. FROM THE ABOVE, HE CONCLUDED THAT ASSES SEE IS NOT INTERESTED IN PURSUING THE APPEAL. UNDER THE CIRCU MSTANCES, HE HELD THAT DUE TO NON-COMPLIANCE BY THE ASSESSEE, IT IS NOT POSSIBLE TO PROCEED WITH THIS APPEAL. HENCE, HE DISMISSED THE APPEAL. 5. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPE AL BEFORE US. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN OU R CONSIDERED OPINION, THIS CASE CAN BE DISPOSED OFF BY PERUSING THE RECORDS AND HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. WE FIN D THAT IN THIS CASE LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER. H E SUMMARILY DISMISSED THE APPEAL BY HOLDING THAT ASSESSEE WAS N OT INTERESTED IN PURSUING THE APPEAL. IN OUR CONSIDERED OPINION, L D. CIT(A) HAS ERRED IN THIS REGARD. LD. CIT(A) SHOULD HAVE ADJUDICATED THE ISSUE ON MERITS. IT IS A SETTLED LAW THAT EVEN THE ADMINIST RATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE . HENCE, WE HOLD THAT IN THIS CASE THE ISSUE NEEDS TO BE REMITTED B ACK TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO CONS IDER THE ISSUE AFRESH AND PASS A PROPER AND SPEAKING ORDER CONSIDERING TH E MERITS OF THE CASE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 2674/DEL/2012 4 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/10/2013, U PON CONCLUSION OF HEARING. SD/- SD/- [ [[ [C.M. GARG C.M. GARG C.M. GARG C.M. GARG] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 09/10/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 2674/DEL/2012 5