Bhikshu Margam, Pune V. Deputy Commissioner of Income-tax, Circle - 2, Pune

ITA 2826/PUN/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9614 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 40A(3); 40(a)(ia); 37(1)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE . , BEFORE SHRI D. KARUNAKARA RAO , AM . / ITA NO. 2826 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 BHIKSHU MARGAM, A3 - 102, KOHINOOR ESTATE, MULA ROAD, KIRKEE, PUNE 411 003. PAN : AACFB9767B . / APPELLANT VS. DCIT, CIRCLE - 2, PUNE . . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAJESH GAW A LI / / / DATE OF HEARING : 01 . 11 .2018 / DATE OF PRONOUNCEMENT : 28 . 1 1 .201 8 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSES SEE AGAINST THE ORDER OF CIT(A) - 13 , PUNE DATED 27.09.2017 FOR THE ASSESSMENT YEAR 20 12 - 13 . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE SERVICE OF THE NOTICE . THEREFORE, CONSIDERING THE SMALLNESS OF THE ISSUE AND THE TAX INVOLVED THEREIN, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 3 . THE GROUND S RAISED BY THE ASSESSEE ARE EXTRACTED HEREUNDER : - ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW : ITA NO. 2826 /PUN /201 7 - 2 - 1. THE CIT(A) ERRED IN DISMISSING TH E APPEAL ON GROUNDS THAT THE APPELLANTS ADDRESS COULD NOT BE LOCATED AND BY CONCLUDING THAT THE APPELLANT WAS NOT INTERESTED IN PROSECUTING ITS APPEAL. THE APPEAL HAS BEEN DISMISSED WITHOUT PROVIDING THE APPELLANT AN OPPORTUNITY TO REPRESENT THE APPEAL A ND WITHOUT HEARING THE APPELLANT. THE APPELLANT PLEADS THAT THE ORDER OF THE CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND IS NOT VALID. 2. THE HON. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCES MADE BY THE AO ON GROUNDS THAT THE ASSESSEE HAD NOT FU RNISHED ANY SUBMISSIONS OR EVIDENCE BEFORE THE CIT(A) IN SUPPORT OF ITS GROUNDS OF APPEAL. THE APPELLANT PLEADS THAT IT WAS DENIED OPPORTUNITY TO MAKE SUBMISSIONS AND FURNISH EVIDENCE IN SUPPORT OF ITS APPEAL AND THAT THE ORDER PASSED BY THE CIT(A) DISMIS SING THE APPEAL IS ERRONEOUS, AGAINST PRINCIPLES OF NATURAL JUSTICE AND IS INVALID. 3. THE AO ERRED IN DISALLOWING RS.21,000/ - U/S 40A(3) OF THE IT ACT ON GROUNDS THAT THE SUBJECT PAYMENT IS IN VIOLATION OF PROVISIONS OF SECTION 40A(3) AND IS NOT ALLOWABLE. THE APPELLANT PLEADS THAT THE SUBJECT PAYMENT WAS A GENUINE BUSINESS TRANSACTION MADE FOR CARRYING OUT URGENT REPAIRS AT ITS FACTORY AND IS ALLOWABLE. 4. THE AO ERRED IN DISALLOWING INTEREST OF RS.3,492/ - ON LATE PAYMENT OF TDS ON GROUND THAT THE SAME IS NOT ALLOWABLE UNDER SECTION 37(1) OF THE IT ACT. THE APPELLANT PLEADS THAT THE PAYMENT OF INTEREST IS COMPENSATORY IN NATURE AND IS ALLOWABLE IN COMPUTATION OF PROFITS OF BUSINESS. 5. THE AO ERRED IN DISALLOWING U/S 40(A)(IA) RS.5,40,513/ - REIMBURSED TO THE ASSE SSEES AGENTS ON ACCOUNT OF CLEARING AND CRANE HIRE CHARGES ON GROUNDS THAT TAX WAS NOT DEDUCTED AT SOURCE BY THE ASSESSEE. THE APPELLANT PLEADS THAT THE DISALLOWANCE MADE BY THE AO IS NOT JUSTIFIED. 6. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, MOD IFY OR WITHDRAW 6. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, MOD IFY OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL. 4 . BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS A FIRM AND IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND DEALER OF MARBLE, GRANITE AND STONE ETC. ASSESSEE FILED THE RETURN OF INCOME ON 29.09. 2012 DECLARING TOTAL INCOME AT NIL . THE CURRENT YEAR LOSS IS ( - ) RS.38,14,754/ - . AT THE END OF THE ASSESSMENT, THE ASSESSING OFFICER MADE COUPLE OF ADDITIONS INVOKING THE PROVISIONS OF SECTION 40A(3), SECTION 40(A)(IA) R.W. THE TDS PROVISION S OF THE STAT UTE . THE CIT(A) CONFIRMED THE SAID ADDITIONS MADE BY THE ASSESSING OFFICER. HOWEVER, I FIND THE ORDER MADE BY THE CIT(A) IS WITHOUT HAVING PRESENCE OF THE ASSESSEE OR ITS AUTHORIZED R EPRESENTATIVE. 5 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSE E IS IN APPEAL BEFORE ME WITH THE GROUNDS EXTRACTED ABOVE. ITA NO. 2826 /PUN /201 7 - 3 - 6 . AS EVIDENT FROM THE ABOVE , NOBODY APPEARED BEFORE THE CIT(A) AND ALSO BEFORE ME. I FIND THIS APPEAL CAN BE DISPOSED OF CONSIDERING THE ISSUE RAISED IN GROUND NO.2 RELATING TO DENIAL OF OPPORTU NITY BY THE CIT(A) TO FURNISH WRITTEN SUBMISSIONS AS WELL AS FURNISH THE EVIDENCES IN SUPPORT OF THE CASE OF THE ASSESSEE . IN THIS REGARD, LD. DR FOR THE REVENUE NARRATED THE FACTS RELATING TO THE SERVICE OF NOTICE AND REASONS FOR NON - COMPLIANCE BY THE AS SESSEE TO THE SAID NOTICE. THE LD. DR FAIRLY SUBMITTED THAT THE ADDRESS GIVEN IN THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A) IS TOTALLY DIFFERENT FROM THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO.36 (COLUMN NO.10). ACCORDING TO HIM, THE NOTICES ISS UED BY THE CIT(A) WENT TO THE ADDRESS GIVEN AT SHIVAJI NAGAR, PUNE AS THE ASSESSEE ALREADY SHIFTED FROM THAT PLACE TO NEW PLACE LOCATED AT MULA ROAD, KIRKEE, PUNE. 7 . WITHOUT GOING TO THE MERITS OF THE CASE , THE PRELIMINARY ISSUE RELATING TO THE SERVICE OF NOTICE, IN MY OPINION, THE IMPUGNED ISSUE RAISED IN GROUND NO.2 IS REQUIRED TO BE ALLOWED IN FAVOUR OF THE ASSESSEE. THIS IS A FIT CASE FOR REMANDING TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION AFTER SENDING PROPER NOTICES TO THE NEWLY AVAILABLE ADDRESS GIVEN BY THE ASSESSEE, WHICH IS FOLLOWS : BHIKSHU MARGAM, A102, KOHINOOR ESTATE, MULA ROAD, KIRKEE, PUNE - 411003 . 8 . ACCORDINGLY, GROUND NO.2 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9 . CONSIDERING THE RELIEF GRANTED BY ME IN GR OUND NO.2, IN MY OPINION, ADJUDICATION OF THE OTHER GROUNDS BECOME ACADEMIC IN NATURE AT THIS POINT OF TIME. ITA NO. 2826 /PUN /201 7 - 4 - 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 28 TH D AY OF NOVEMBER , 2018 . SD/ - ( D. KARUNAKARA RAO ) / ACCOUNTANT MEMBER / PUNE ; DATED : 28 TH NOVEMBER , 2018 . SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESP ONDENT; 3. THE CIT(A) - 13 , PUNE ; 4. THE C CIT (INTERNATIONAL TAXATION), WEST ZONE, MUMBAI ; 5. , , - / DR SMC , ITAT, PUNE; 6. / GUARD FILE . 6. / GUARD FILE . // TRUE COPY // / BY O RDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE