M/s. Philco Engineers Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2744/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6876 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 21-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 07-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Additional evidence
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-274 4/DEL/2015 (ASSESSMENT YEAR- 2004-05) PHILCO ENGINEERS PVT.LTD., F-27, 1 ST FLOOR, OKHLA INDUSTRIAL AREA, PHASE-I, NEW DELHI-110020. PAN-AAACP0640C (APPELLANT) VS ITO, WARD-14(2), NEW DELHI. (RESPONDENT) APPELLANT BY NONE RESPONDENT BY MS. ANIMA BARNWAL, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 03.02.2014 OF CIT(A)-XVII, DELHI PERTAINING TO 2004-05 ASSESSMENT YEAR ON VARIOUS GROUNDS. ALTHOUGH, AT T HE TIME OF HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, CO NSIDERING THE MATERIAL AVAILABLE ON RECORD, IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERIT AFTER HEARING THE LD.SR.DR. 1.1. THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN THE PRESENT APPEAL:- 1. THE LEARNED CIT(A) ERRED IN LAW IN UPHOLDING THE I SSUANCE OF NOTICE U/S 147 OF THE INCOME TAX ACT, 1961 AS VALID. 2. THE LEARNED CIT(A) ERRED IN LAW IN UPHOLDING THE RE OPENING OF THE COMPLETED ASSESSMENT U/S 143(3) AFTER 4 YEAR AS VAL ID, IN SPITE OF THE FACT THAT THERE WASNT ANY FAILURE ON THE PART OF T HE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS REQUIRE D FOR COMPLETING THE ASSESSMENT. 3. THE LEARNED CIT(A) ERRED IN LAW IN UPHOLDING THE DI SALLOWANCE OF COMMISSION PAID TO FOREIGN AGENT AMOUNTING TO RS.8, 77,117/- U/S 40(IA) OF THE INCOME TAX ACT, 1961. DATE OF HEARING 21.07.2016 DATE OF PRONOUNCEMENT 17.10.2016 I.T.A .NO.-2744/DEL/2015 PAGE 2 OF 3 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSMENT ORDER U/S 143(3) DATED 08.12.2006 WHEREIN ASSESSMENT WAS CONCLUDED A T AN INCOME OF AT RS.8,25,273/- WAS RE-OPENED VIDE ORDER DATED 13.12. 2011 WHEREIN BY AN ORDER U/S 144/147 CONCLUDED ASSESSMENT AT RS.17,02,390/-. 2.1. THE ASSESSEE ASSAILED THE EX-PARTE ORDER ON JU RISDICTION AS WELL AS ON MERITS BEFORE THE CIT(A). THE CIT(A) IN PAGE 3 & 4 RECORD S THAT THE OPPORTUNITIES GRANTED TO THE ASSESSEE WERE NOT AVAILED AS THE ASSESSEE FA ILED TO ATTEND. IN THESE CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE WAS DISMI SSED. HOWEVER, A PERUSAL OF PARA 6.4 AT PAGE 7 OF THE IMPUGNED ORDER ALSO RECOR DS THAT THE ASSESSEE HAD FILED ADDITIONAL EVIDENCES AND CONSIDERING THE REMAND REP ORT OF THE AO, THE APPEAL WAS DISMISSED. CONSIDERING THE GLARING FACTUAL CONT RADICTION IN PAGE 3 & 7 OF THE IMPUGNED ORDER WHEREIN FIRSTLY, THE CIT(A) RECORDS THAT THE ASSESSEE WAS NOT PRESENT ON ANY OF THE DAYS. THEREAFTER HE RECORDS T HAT ADDITIONAL EVIDENCE WAS FILED AND THE ASSESSEE STATED HIS VERSION OF THE FA CTS. IN THE FACE OF THE CONTRADICTION, IT IS DEEMED APPROPRIATE TO SET ASID E THE ORDER AND RESTORE THE ISSUE BACK TO THE AO WHICH WAS THE REQUEST OF THE LD. SR. DR WHO SUBMITTED THAT SINCE THE ASSESSMENT ORDER ITSELF IS U/S 144. IN THESE C IRCUMSTANCES, THE AO WOULD BE THE APPROPRIATE AUTHORITY TO ADDRESS THE ISSUES WHI CH MAY NEED CONSIDERATION. 3. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AS FAILING WHICH THE AO WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD. 3.1. FROM A PERUSAL OF THE RECORD, IT IS SEEN THAT THE ADDRESS MENTIONED IN THE IMPUGNED ORDER IS AS UNDER:- M/S. PHILCO ENGINEERS (P.) LTD., A-4, OKHLA INDUSTRIAL AREA, PHASE-I, NEW DELHI-1100 20. I.T.A .NO.-2744/DEL/2015 PAGE 3 OF 3 3.2. THE ASSESSEE ON THE OTHER HAND HAS MENTIONED T HE FOLLOWING ADDRESS IN COLUMN NO.10 BEFORE THE ITAT:- PHILCO ENGINEERS PVT.LTD., F-27, 1 ST FLOOR, OKHLA INDUSTRIAL AREA, PHASE-I, NEW DELHI-110020. 3.3. IN THE CIRCUMSTANCES, THE AO IS DIRECTED TO SE ND NOTICE TO THE LATEST ADDRESS PROVIDED BY THE ASSESSEE TO ENSURE COMPLIANCE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES.. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2016. SD/- (DIV A SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSI STANT REGISTRAR ITAT NEW DELHI