I.Mahaveer Kumar, CHENNAI V. ITO Non Corporate Ward 5(3), CHENNAI

ITA 2678/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2738 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRIDHAR DHORA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.2678/CHNY/2018 [ [ / ASSESSMENT YEAR: 2015-16) SHRI I MAHAVEER KUMAR, 5/5, PILLAIYAR KOIL STREET, PARK TOWN, CHENNAI 600 003. VS THE INCOME TAX OFFICER, NON-CORPORATE WARD 5(3), CHENNAI. PAN: AEMPM9253P ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI M.KARUNAKARAN, ADVOCATE / RESPONDENT BY : SHRI SRIDHAR DHORA, JCIT /DATE OF HEARING : 25.02.2019 /DATE OF PRONOUNCEMENT : 25.02.2019 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DATED 29.06.2018 IN ITA NO.77/CIT(A)-5/2017-18 FOR THE ASSESSMENT YEAR 2015-16 PASSED U/S.250(6) R.W.S. 143(3) OF THE ACT. 2 ITA NO.2678/CHNY/2018 2. THE APPEAL WAS FILED BY THE ASSESSEE WITH A DELAY OF EIGHT DAYS. THE ASSESSEE HAS FILED A CONDONATION PETITION STATING THAT THE APPEAL PAPERS WERE MISPLACED IN THE OFFICE OF THE AUDITOR DUE TO WHICH THE DELAY HAD OCCURRED. HENCE IT WAS PLEADED THAT THE DELAY OF EIGHT DAYS IN FILING THE APPEAL MAY BE CONDONED. THE LD. DR STRONGLY OBJECTED TO THE SUBMISSION OF THE LD. AR. AFTER HEARING BOTH SIDES, THOUGH WE DO NOT APPRECIATE THE LAPSE ON THE PART OF THE ASSESSEE TO FILE THE APPEAL WITHIN THE STIPULATED PERIOD, IN THE INTEREST OF JUSTICE, WE HEREBY CONDONE THE DELAY OF EIGHT DAYS IN FILING THE APPEAL AND PROCEED TO HEAR THE CASE ON MERITS. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS APPEAL :- 1. THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IN CONFIRMING THE ADDITION OF RS.16,97,280/- MADE IN THE ASSESSMENT ORDER IS ILLEGAL, ARBITRARY, AGAINST THE WEIGHT OF EVIDENCE AND ALL PROBABILITIES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DECIDING THE APPEAL IN EX-PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GIVEN ONLY ONE HEARING OF THE APPEAL AND THE APPELLANT COULD NOT CONTACT THE AUTHORIZED REPRESENTATIVE ON THE SAID DATE AND THEREFORE NO ONE COULD REPRESENT THE CASE. 3. THE ASSESSING OFFICER ERRED IN TREATING THE DIFFERENCE IN THE ASSESSABLE VALUE DETERMINED BY THE CUSTOMS OFFICIALS FOR LEVY OF CUSTOMS DUTY AS THE PURCHASE VALUE OF THE GOODS OF THE APPELLANT. HE HAS FAILED TO UNDERSTAND THAT THE CUSTOMS AUTHORITIES FIX THE CUSTOMS DUTY BASED ON THE WEIGHT OF THE CONTAINER AND NOT ON THE VALUE OF THE GOODS IMPORTED. 3 ITA NO.2678/CHNY/2018 4. THE APPELLANT SUBMITS THAT HE HAS PAID THE CUSTOMS DUTY LEVIED ON THE ASSESSABLE VALUE DETERMINED BY THE CUSTOMS DEPARTMENT AS HE HAS NO OPTION TO DISPUTE THE SAME AND THE ASSESSABLE VALUE ARRIVED AT BY THE CUSTOMS AUTHORITIES DO NOT REPRESENT THE PURCHASE VALUE OF THE GOODS IMPORTED AND THE SAME IS ONLY FOR THE LIMITED PURPOSE OF LEVY OF CUSTOMS DUTY BY THE DEPARTMENT. 5. THE APPELLANT HAD RIGHTY ACCOUNTED FOR THE COST OF PURCHASE OF THE IMPORTED GOODS BY TAKING THE VALUE OF THE INVOICE OF THE FOREIGN SELLER, CUSTOMS DUTY ACTUALLY PAID BASED ON THE ASSESSABLE VALUE DETERMINED BY THE CUSTOMS DEPARTMENT AND THE CLEARING AND FORWARDING CHARGES AND THERE WAS NO SUPPRESSION OF SALES OR INFLATION OF PURCHASES AND THEREFORE THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE DIFFERENCE AS SALES SUPPRESSION AND IN ESTIMATING THE ALLEGED PROFIT AT RS.16,97,280/-. 6. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER MADE THE ADDITION OF RS. 16,97,280/- AS ESTIMATED INCOME ON THE ALLEGED PURCHASE OMISSION WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE ESPECIALLY THE BASIS OF DETERMINING THE ASSESSABLE VALUE BY THE CUSTOMS DEPARTMENT. 7. THE APPELLANT THEREFORE PRAYS THAT THE ADDITION OF RS.16,97,280/- MADE BY THE ASSESSING OFFICER BE DELETED AND RENDER JUSTICE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF TRADING TOYS, FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2015-16 ON 12.09.2015 ADMITTING TOTAL INCOME OF RS.5,70,480/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) OF THE ACT WAS ISSUED ON 20.09.2016. FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT ON 20.11.2017 WHEREIN THE LD.AO MADE ADDITION OF RS.16,97,280/- TOWARDS SUPPRESSION OF PURCHASES AND SALES. 4 ITA NO.2678/CHNY/2018 5. AT THE OUTSET THE LD.AR SUBMITTED THAT THE LD.CIT(A) HAD PASSED AN EX-PARTE ORDER WITHOUT GRANTING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. HE FURTHER SUBMITTED THAT THE LD.CIT(A) HAD GRANTED ONLY ONE OPPORTUNITY FOR HEARING AND ON THAT GIVEN DATE HE COULD NOT APPEAR BEFORE THE LD.CIT(A). IT WAS FURTHER SUBMITTED THAT THE LD.CIT(A) HAD PASSED THE EX-PARTE ORDER WITHOUT GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD.CIT(A) FOR DE-NOVA CONSIDERATION. THE LD.DR STRONGLY OPPOSED TO THE SUBMISSION OF THE LD.AR AND PLEADED FOR CONFIRMING THE ORDERS OF THE LD.REVENUE AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE ORDER OF THE LD.CIT(A), IT APPEARS THAT ASSESSEE WAS NOT GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD. CONSIDERING THE PRAYER OF THE LD.AR, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR FRESH CONSIDERATION THEREBY PROVIDING THE ASSESSEE WITH ONE MORE OPPORTUNITY OF BEING HEARD. AT THE SAME TIME, WE ALSO CAUTION THE ASSESSEE TO PROMPTLY CO-OPERATE BEFORE THE LD.REVENUE AUTHORITIES 5 ITA NO.2678/CHNY/2018 IN ORDER TO EXPEDITE THEIR PROCEEDINGS, FAILING WHICH THE LD.REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERIT BASED ON THE MATERIALS BEFORE THEM. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25 TH FEBRUARY, 2019 AT CHENNAI. SD/- SD/- ( ) (DUVVURU R.L REDDY) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 25 TH FEBRUARY, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. [ /GF