Adarsh Kanch Udyog Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2681/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53363 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-12-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: K R MANJHANI
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Additional evidence; Time period of passing order; Capital expenditure
• Section: 143(3); 68

Judgement Text

ITA NO. 2681/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2681/DEL/2010 A.Y. : 2003-04 ADARSH KANCH UDYOG PVT. LTD., COAL SIDING ROAD, FIROZABAD (UP)-283203 VS. INCOME TAX OFFICER, WARD 1(2), CENTRAL REVENUE BUILDING, NEW DELHI (PAN: AACCA5631N) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. K.R. MANJHANI, ADVOCATE DEPARTMENT BY : MRS. ANUSHA KHURANA, 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 T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 2.3.20 10 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED READ AS UNDER:- (I) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND FA CTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THE ORDER PASSE D UNDER SECTION 143(3) AS VALID WITHOUT PROVING THE VALID S ERVICE OF NOTICE UNDER SECTION 143(2) WITH IN THE LIMITATION P ERIOD OF 12 MONTHS AS PER PROVISO 143(2) UNDER THE CIRCUMSTA NCES WHEN RECEIPT OF NOTICE IS DENIED BY THE APPELLANT C OMPANY AND SERVICE OF NOTICE IS NOT CONFRONTED TO THE APPE LLANT COMPANY INSPITE OF REQUEST MADE. ITA NO. 2681/DEL/2010 2 (II) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND F ACTS AND CIRCUMSTANCES OF THE CASE IN HOLDING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AS VALID UNDER THE CIRCUMSTANCES WHEN IT IS PASSED BY THE ASSESSING OFF ICER AGAINST THE PRINCIPAL OF NATURAL JUSTICE AND APPREC IATING THE CORRECT FACTS OF THE CASE AND WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. (III) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING THE ADDITION OF RS. 25,0 0,000/- IN THE HANDS OF APPELLANT WITHOUT BRINGING ANY MATERIA L ON RECORD TO PROVE THAT AMOUNTS SO SURRENDERED DURING T HE COURSE OF SURVEY BY DEPARTMENT OFFICIALS AT FIROZABA D, ACTUALLY BELONGS TO THE INCOME OF APPELLANT, UNDER THE CIRCUMSTANCES AND IGNORING THE FACT, THAT ALONG WIT H CASH FOUND IN THE POSSESSION OF THE DIRECTOR OF APPELLAN T COMPANY AT THE TIME OF SURVEY, A SLIP CONTAINING THE NAME OF THE PERSON TO WHOM CASH SO FOUND ACTUALLY BELON GS, AND LATER ON AMOUNT SO SURRENDERED IN THE NAME OF SUCH P ERSON WAS ACCEPTED BY ASSESSING OFFICERS AT FIROZABAD, AND TAX WAS PAID BY SUCH INDIVIDUAL PERSONS. (IV) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND F ACTS AND CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THE ADDIT IONAL EVIDENCES FILED BY APPELLANT COMPANY IN RESPECT OF A DDITION TO SHARE CAPITAL OF RS. 7,00,000/- AND THUS CONFIRMI NG THE ADDITION OF RS.7,00,000/- MADE BY ASSESSING OFFICER UNDER SECTION 68 OF THE I.T. ACT IGNORING THE VARIOUS CAS E LAWS ITA NO. 2681/DEL/2010 3 RELIED UPON BY APPELLANT IN RESPECT OF ADMISSIBILITY OF ADDITIONAL EVIDENCE AND AS WELL AS ON THE MERITS OF THE CASE. (V) LD CIT(APPEAL) IS NOT JUSTIFIED IN LAW AND FACT S AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITION OF RS. 4,45,000/- ON ESTIMATION BASIS OUT OF TOTAL ADDITIO N OF RS. 8,90,156/- MADE BY ASSESSING OFFICER UNDER THE H EAD PURCHASE OF BUILDING MATERIAL (CAPITAL EXPENDITURE) . (VI) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND F ACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITION OF RS. 26,229/- ON ACCOUNT OF ESI PENALTY PAID FOR LATE PA YMENT, (VII) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE DISALLOW ANCE OF RS. 36,000/- PAID FOR CONSULTANCY CHARGES TO SHRI R . N. HARI AND OTHERS. (VIII) LD. CIT (APPEAL) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITION OF RS. 6,84,999/- ON ACCOUNT OF EXPENDITURE ON REPAIR AND MAINTENANCE EXPENSES. (IX) LD CIT(APPEAL) IS NOT JUSTIFIED IN LAW AND FACT S AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN DISALLOWING THE CLAIM OF DEDUCT ION UNDER SECTION SOIA UNDER THE CIRCUMSTANCES APPELLANT COMPA NY IS AN INDUSTRIAL UNDERTAKING AND IS REGISTERED AS A SS I UNIT AND FULFILL ALL THE CONDITIONS AS LAID DOWN UNDER THE P ROVISION OF I.T. ACT. ITA NO. 2681/DEL/2010 4 (X) ASSESSEE HAS EVERY RIGHT TO MAKE, ADD, DELETE, MODIFY OR ALTER ANY GROUND OF APPEAL AT THE TIME OF HEARING. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. 4. APROPOS GROUND NO. (I), WE FIND THAT ASSESSEE H AS RAISED A SPECIFIC GROUND THAT ORDER PASSED U/S 143(3) WAS NO T VALID IN AS MUCH AS THERE IS NO PROOF OF VALID SERVICE OF NOTICE U/ S 143(2) WITHIN THE LIMITATION PERIOD OF 12 MONTHS, AS PER PROVISO TO SEC TION 143(2). WE FURTHER FIND THAT LD. COMMISSIONER OF INCOME TAX (APP EALS) HAS NOT PROPERLY GIVEN A FINDING ON THIS ISSUE. HE HAS ONL Y OBSERVED THAT THE GROUNDS AND THE ARGUMENTS OF THE ASSESSEE ARE NOT VE RY STRONG. IN OUR CONSIDERED OPINION, LD. COMMISSIONER OF INCOME TAX (A PPEALS) SHOULD PASS A SPEAKING ORDER ON THIS ISSUE INCORPORATING H IS SPECIFIC FINDING IN THIS REGARD. ACCORDINGLY, WE REMIT THIS ISSUE TO TH E FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), TO CONSIDER TH E SAME AFRESH. 5. AS REGARDS OTHER GROUNDS ON MERITS OF THE CASE, WE FIND THAT ASSESSEE HAS SUBMITTED VARIOUS SUBMISSIONS, ADDITION AL EVIDENCES BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WHO HAS ADJUDICATED THE MATTER WITHOUT CONSIDERING THE SAME. IN OUR CONSIDERED OPINION, INTEREST OF JUSTICE WILL BE SER VED, IF ALL THE SUBMISSIONS INCLUDING ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ARE CONSIDERED BY THE LD. COMMISSIONER OF INCOME TAX (APP EALS) IN ADJUDICATING THE MATTER ON MERITS. THUS, WE REMIT THE OTHER ISSUES RAISED IN THE APPEAL, TO THE FILE OF THE LD. COMMIS SIONER OF INCOME TAX ITA NO. 2681/DEL/2010 5 (APPEALS), WHO SHALL ADJUDICATE THE SAME AFTER TAKI NG INTO ACCOUNT ALL THE SUBMISSIONS AND ADDITIONAL EVIDENCES FILED BY TH E ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28/12/2011. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [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 28/12/2011 SRB 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