M/s Apex Electronics, Patiala V. ITO, Patiala

ITA 280/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77067 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.280/CHD/2014 ASSESSMENT YEAR: 2009-10 THE APEX ELECTRONICS, VS. THE ITO, PATIALA WARD-4, PATIALA PAN NO. AALFA5027C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 19.05.2014 DATE OF PRONOUNCEMENT : 21.05.2014 ORDER PER T.R.SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 11.1.2013 OF LD. CIT (APPEALS), PATIALA. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN UPHOLDING THE FRAMING OF THE ASSESSMENT EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY WHICH IS AGAINST THE PRINCIPALS OF NATU RAL JUSTICE AND AS SUCH THE ASSESSMENT FRAMED IS ILLEGA L, ARBITRARY AND UNJUSTIFIED. 2. THAT ADMITTEDLY THE ASSESSEE FIRM WAS NOT AVAILA BLE AT THE ADDRESS WHERE THE NOTICE WAS BEING SERVED AND A S SUCH THE PASSING OF AN ORDER WITHOUT SERVICE OF NOT ICE IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2 3. THAT WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ENHANCEMEN T OF SALES TO RS. 19,50,00,000/- AS AGAINST DECLARED AT RS. 18,94,53,975/- AND THEREAFTER APPLYING NET PROF IT RATE OF 2% RESULTING IN AN ADDITION OF RS. 39,00,00 0/- WHICH IS ARBITRARY AND UNJUSTIFIED. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY OPPOSED TO LAW AN D FACTS OF THE CASE AND IS, THUS, UNTENABLE. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING ASSE SSMENT PROCEEDINGS IT WAS POINTED OUT THAT CERTAIN DISPUTES WERE GOING ON BET WEEN THE PARTIES AND THAT IS WHY THE COMPLIANCE COULD NOT BE MADE TO VARIOUS ENQ UIRIES. ULTIMATELY, THE ASSESSMENT ORDER WAS PASSED WHEREIN THE INCOME OF T HE ASSESSEE WAS ESTIMATED. AGGRIEVED BY THIS ORDER, THE ASSESSEE FILED APPEAL BEFORE CIT(A) AND NOTICE WAS ISSUED IN THE NAME OF THE FIRM AT 90, MANSAHIA COLO NY, PATIALA, WHICH WAS THE ADDRESS GIVEN IN THE APPEAL MEMORANDUM BUT THE NOTI CE WAS REFUSED, THEREFORE, THE LD. CIT(A) DECIDED THE APPEAL ON EX. PARTE BASI S AND CONFIRMED THE ESTIMATE MADE BY THE ASSESSING OFFICER. 4. BEFORE US, THE AFFIDAVIT OF SHRI ACHHRU KUMAR SI NGLA HAS BEEN FILED IN WHICH IT IS STATED THAT BECAUSE OF SERIOUS DISPUTE WITH SHRI TEJINDER PAL BHALLA WHO IS ALSO ONE OF THE PARTNER AND WHOSE ADDRESS WA S GIVEN BEFORE CIT(A) WRONGLY REFUSED TO ACCEPT THE NOTICE. ANOTHER AFF IDAVIT OF SHRI PARDEEP DHAWAN S/O LATE SHRI KRISHAN LAL WHO WAS ALSO PARTN ER HAS ALSO BEEN FILED STATING THE SAME FACTS. THE LD. COUNSEL MAINLY SUBM ITTED THAT THERE WAS SERIOUS DISPUTE AND THAT IS WHY PROCEEDINGS COULD NOT BE AT TENDED BEFORE THE CIT(A). HE FURTHER SUBMITTED THAT HE IS READY TO PRESENT HI MSELF BEFORE CIT(A) AND RECEIVE NOTICE SO THAT PROCEEDINGS COULD BE ATTENDE D. 5. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDE R OF CIT(A). 3 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT ASSESSEE COULD NOT ATTEND THE PROCEEDINGS BECAUSE OF THE REFUSAL TO RE CEIVE NOTICE BY ONE OF THE PARTNER. SINCE IT BECOMES CLEAR FROM THE AFFIDAVIT AND OTHER DOCUMENTS FILED BEFORE US THAT SOME DISPUTES ARE GOING BETWEEN PART NERS, IN OUR OPINION, THE ASSESSEE SHOULD NOT SUFFER BECAUSE OF THE NON-COOPE RATION OF ONE OF THE PARTNER AND THEREFORE, IN THE INTEREST OF JUSTICE WE SET AS IDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO HIS FILE. THE LD. COUNSEL IS DIRECTED TO APPEAR BEFORE THE CIT(A) AND REQUEST FOR AN APPROPRIATE DATE FOR WHICH HE MAY RECEIVE THE NOTICE AND ATTEND PROCEEDINGS. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 21 ST MAY, 2014 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSTT REGISTRAR ITAT, CHANDIGARH