Puneet Pandey, New Delhi V. ITO, Noida

ITA 2892/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2860 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 194C; 263

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. K. N. CHARY , JM ITA NO. 2892/DEL/2016 : ASSTT. YEAR : 2008 - 09 PUNEET PANDEY, C/O RAJ KUMAR & ASSOCIATES, CAS, L - 7A(LGF), SOUTH EXT., PART - 2, NEW DELHI - 110049 VS INCOME TAX OFFICER, WARD - 2(3), NOIDA, U.P. (APPELLANT) (RESPONDENT) PAN NO. A MZPP0202G ASSESSEE BY : SH. RAJ KUMAR, CA REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 14 .12 .201 7 DATE OF PRONOUNCE MENT : 18 .12 .201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31.03.2016 OF LD. CIT(A ) - I , NOIDA . 2. FOLL OWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT UNDER FACTS AND CIRCUMSTANCES, LD. CIT (A) GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN DISMISSING THE APPEAL AS NOT - MAINTAINABLE AND CONSEQUENTLY IN NOT DECIDING THE VARIOUS GROUNDS OF APPEAL PREF ERRED BEFORE HIM. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE LD. AO COMMITTED GRAVE ERROR IN TREATING THE PRAYER MADE BELOW GROUNDS OF APPEAL AS THE GROUNDS OF APPEAL , CONSEQUENTLY ERRED IN NOT ADJUDICATING THE GROUNDS OF APPEAL TAKEN BEFORE HIM, ITA NO . 2892 /DE L/2016 PUNEET PANDEY 2 3. THAT UNDER THE FACTS AND CIRCUMSTANCES, LD. AO GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN DISALLOWING RS. 6,74,793/ - U/S 40(A)(IA) BEING PAYMENT FOR CLEARING AND FORWARDING EXPENSES FOR ALLEGED DEFAULT OF TDS U/S 194C OF THE ACT. 4. THAT UNDER THE FA CTS AND CIRCUMSTANCES, THE LD. AO GROSSLY ERRED IN LAW AS WELL ON MERITS I N REPEATING THE ADDITION OF RS. 8,04,916 / - MADE BY THE AO IN ORDER U/S 143 (3) DTD. 16.11.2010 BY REJECTING THE BOOKS OF ACCOUNTS AND BY ESTIMATING THE N.P. FROM BUSINESS @16%. 3 . TH E MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE DISMISSAL OF THE APPEAL IN LIMINE BY THE LD. CIT(A). 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS.4,65,840/ - ON 29.09.2008. LATER ON , THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS FRAMED BY THE AO AT AN INCOME OF RS.12,70,756/ - BY MAKING AN ADDITION OF RS.8,04,916/ - . SUBSEQUENTLY, THE LD. CIT , NOIDA REVIEWED THE ASSESSMENT ORDER U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND DIRECTED THE AO TO CONSIDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ON THE PAYMENT OF RS.8,14,182/ - . THE AO MADE THE ADDITION OF RS.6,74,793/ - ITA NO . 2892 /DE L/2016 PUNEET PANDEY 3 BY MAKING THE DISALLOWANCE ON ACCOUNT OF NON - DEDUCTION OF TDS U/S 194C OF THE ACT. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE BY OBSERVING IN PARAS 3 & 4 OF THE IMPUGNED ORDER AS UNDER: 3. THE APPELLANT HAS IN ITS APPEAL MEMO PRAYED AS UNDER: THE APPELLANT - ASSESSEE PR AYS THAT THE RELIEF AS PER GROUNDS OF APPEAL ABOVE MAY KINDLY BE ALLOWED TO HIM AND THE LEARNED INCOME TAX AUTHORITIES MAY PLEASE FUNCTION WITH CONSISTENCY AND FAIRNESS. THE APPELLANT CRAVES TO ADD, AMEND, ALTER, CHANGE, SUBSTITUTE, VARY OR RAISE ANY ADDIT IONAL GROUNDS OF APPEAL IF IT BECOMES NECESSARY TO DO SO IN THE INTEREST OF JUSTICE EITHER AT OR BEFORE THE DATE OF HEARING. 4. THE UNDERSIGNED WHILE EXERCISING JURISDICTION UNDER 246A OF I.T. ACT, 1961 HAS NO JURISDICTION TO DO ANYTHING TO MAKE THE INCO ME TAX AUTHORITIES FUNCTION WITH CONSISTENCY AND FAIRNESS. FOR WANT OF JURISDICTION THE PRAYER OF THE APPELLANT CANNOT BE GRANTED. THE APPEAL IS DISMISSED AS NOT MAINTAINABLE. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TOWARDS FORM NO. 35 FURNISHED TO THE LD. CIT(A) AND SUBMITTED THAT SPECIFIC GROUNDS CHALLENGING THE ADDITION S MADE BY THE AO WERE RAISED ITA NO . 2892 /DE L/2016 PUNEET PANDEY 4 BEFORE THE LD. CIT(A) AND A PRAYER WAS MADE TO ALLOW THE RELIEF AS PER THE GROUNDS OF APPEAL. HOWEVER, THE LD . CIT(A) ONLY CONSIDERED THE PRAYER AND HELD THAT HE HAS NO JURISDICTION TO DO ANYTHING TO THE INCOME TAX AUTHORITIES WITH CONSISTENCY AND FAIRNESS BUT DID NOT CONSIDER THE VARIOUS GROUNDS RAISED BY THE ASSESSEE. 7 . IN HIS RIVAL SUBMISSIONS, THE LD. DR AL THOUGH SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE RAISED 8 GROUNDS BEFORE THE LD. CIT(A) CHALLENGING THE VARIOUS ADDITIONS MADE BY THE AO BUT THOSE GROUNDS WERE NOT CONSIDERED AND DISPOSED OFF BY THE LD. CIT(A). WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS MADE CLEAR THAT THE LD. CIT(A) SHALL DECIDE THE VARIOUS GROUNDS ON MERIT AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO . 2892 /DE L/2016 PUNEET PANDEY 5 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 18 /12 / 2017 ) SD/ - SD/ - (K. N. CHARY ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 8 /12 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR