Kish Exports Ltd., Gurgaon V. JCIT, New Delhi

ITA 305/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3514 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 14-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GURTEET SINGH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES D : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA.NO.304, 305, 306 & 307/DEL./2O15 ASSESSMENT YEARS 2006-2007, 2007-2008 KISH EXPORTS LTD., 885, UDYOG VIHAR PHASE V, GURGAON, HARYANA. PAN AAACK3763H VS. THE JOINT COMMISSIONER OF INCOME TAX, RANGE-50, NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI GURTEET SINGH, C.A. FOR REVENUE : SHRI AMIT JAIN, SR. D.R. DATE OF HEARING : 13.02.2012 DATE OF PRONOUNCEMENT : 16 .02.2012 ORDER PER BHAVNESH SAINI, J.M. ALL THE APPEALS BY THE SAME ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CIT(A)-XVIII, N EW DELHI, DATED 14 TH NOVEMBER, 2014, FOR FINANCIAL YEARS 2005-2006 AND 2006-2007 (A.YS. 2006-2007 AND 2007-2008), CHALLENG ING THE 2 ITA.NOS.304, 305, 306 & 306/DEL./2015 KISH EXPORTS LTD., GURGAON LEVY OF PENALTY PASSED BY THE A.O. UNDER SECTIONS 2 72A(2)(K) AND 272A(2)(G) OF THE I.T. ACT, 1961. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSE E CHALLENGED THE ABOVE PENALTY ORDER PASSED BY A.O. T O BE ERRONEOUS BEFORE LD. CIT(A). IT WAS SUBMITTED BEFOR E LD. CIT(A) THAT PENALTY WAS LEVIED REGARDING NON-ISSUE OF TDS CERTIFICATE. IT WAS SUBMITTED THAT THERE WAS A FIRE IN THE ACCOU NTS AND DOCUMENTATION DEPARTMENT IN THE PREMISES OF THE ASS ESSEE ON 29 TH AUGUST, 2012. COPY OF THE REPORT OF FIRE OFFICER W AS FILED. WHATEVER RECORDS COULD BE SAVED WERE SO DISRUPTED A ND ASSESSEE COULD NOT TRACE THE COPIES OF THE CERTIFIC ATES AT THAT TIME. IT WAS EXPLAINED THAT NOW THE ASSESSEE HAS BE EN ABLE TO TRACE THEIR RECORDS AND CERTIFICATES AND WISH TO IN FORM THE LD. CIT(A) THAT TDS CERTIFICATES FOR F.Y. 2006-2007 WER E ISSUED ON 27 TH JUNE, 2007, WITHIN THE PRESCRIBED TIME LIMIT. COPI ES OF SUCH CERTIFICATES AND RECEIPTS OF THE PARTY IN WHOM CERTIFICATES WERE ISSUED WERE FILED BEFORE LD. CIT(A). IT WAS, T HEREFORE, 3 ITA.NOS.304, 305, 306 & 306/DEL./2015 KISH EXPORTS LTD., GURGAON SUBMITTED THAT RELIEF FOR PENALTY IMPOSED UNDER SEC TION 272A(2)(G) MAY BE GRANTED TO THE ASSESSEE. 2.1. AS REGARDS THE PENALTY UNDER SECTION 272A(2)( K) OF THE I.T. ACT, IT WAS SUBMITTED THAT DATE OF SUBMISS ION OF FORM NOS.24Q AND 26Q I.E, RETURN FOR FIRST QUARTER OF 20 05-2006 WAS EXTENDED TO 31 ST AUGUST, 2005. IT WAS SUBMITTED THAT ASSESSEE HAD SUBMITTED BOTH THE FORMS ON 30 TH AUGUST, 2005- 2006 AND THEREFORE, WITHIN THE TIME LIMIT. WHILE CA LCULATING THE DELAY IT HAS BEEN TAKEN AS 46 DAYS FOR EACH FOR M WHEREAS IT SHOULD HAVE BEEN NIL AS THE RETURNS WERE FILED W ITHIN THE EXTENDED TIME. COPY OF THE EXTENSION ORDER WAS ALSO FILED. THE LD. CIT(A) AS REGARDS DELAY OF 46 DAYS IN FORM NOS. 24Q AND 26Q DIRECTED THE A.O. TO VERIFY THE CLAIM OF ASSESS EE AS PER BOARD CIRCULAR AND ALLOWED THE ASSESSEES DELAY OF 46 DAYS IN THE ABOVE TWO FORMS. WITH REGARD TO REMAINING PENAL TY, LD. CIT(A) HELD THAT ASSESSEE HAS NOT BEEN ABLE TO GIVE ANY JUSTIFICATION, THEREFORE, PENALTY LEVIED UNDER THE ABOVE 4 ITA.NOS.304, 305, 306 & 306/DEL./2015 KISH EXPORTS LTD., GURGAON PROVISIONS, FOR THE REMAINING AMOUNT WAS CONFIRMED. APPEALS OF THE ASSESSEE WERE PARTLY ALLOWED. 3. LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT FR OM THE PENALTY ORDER THAT IT WAS SUBMITTED BEFORE A.O. THAT DUE TO FIRE IN THE OFFICE PREMISES OF THE ASSESSEE, MOST O F THE RECORDS WERE BURNT. COPY OF THE REPORT OF FIRE DEPARTMENT W AS FILED. THE ASSESSEE MADE REQUEST TO GIVE SOME MORE TIME TO PRESENT THEIR CASE BEFORE A.O. HE HAS SUBMITTED THAT DUE TO FIRE WHATEVER RECORDS COULD BE SAVED WAS SO DISRUPTED AN D ASSESSEE COULD NOT PLACE COPIES OF THE CERTIFICATES AT THAT TIME. SAME WERE FILED BEFORE LD. CIT(A), WHICH HAVE NOT B EEN CONSIDERED/DISCUSSED IN THE APPELLATE ORDER. THE LE ARNED COUNSEL FOR THE ASSESSEE, THEREFORE, MADE A REQUEST THAT THE MATTER MAY BE REMANDED TO THE A.O. FOR RECONSIDERAT ION OF THE ISSUE BECAUSE WHATEVER RECORDS COULD TRACED-OUT AFT ER FIRE, IS REQUIRED TO BE CONSIDERED BY THE AUTHORITIES BELOW. 5 ITA.NOS.304, 305, 306 & 306/DEL./2015 KISH EXPORTS LTD., GURGAON 4. THE LD. D.R. THOUGH RELIED UPON THE ORDERS OF T HE AUTHORITIES BELOW, HOWEVER, STATED THAT THE MATTER COULD BE REMANDED FOR VERIFICATION OF THE FACTS STATED BY TH E ASSESSEE. 5. CONSIDERING THE SUBMISSIONS OF THE PARTIES IN T HE LIGHT OF FINDINGS OF THE AUTHORITIES BELOW, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEV EL OF THE A.O. IT IS NOT IN DISPUTE THAT DUE TO FIRE IN THE PREMIS ES OF THE ASSESSEE, MOST OF THE RECORDS OF THE ASSESSEE WERE BURNT AS SUBMITTED BY THE ASSESSEE. THE ASSESSEE, THEREFORE, PLEADED THAT MORE TIME BE GIVEN TO PRESENT ITS CASE BEFORE A.O, HOWEVER, IT WAS NOT GRANTED. THE ASSESSEE ULTIMATEL Y SUBMITTED COPIES OF SOME CERTIFICATES AND RECEIPTS OF THE PARTIES BEFORE LD. CIT(A) WHICH WERE TRACED-OUT AFT ER THE FIRE ACCIDENT. HOWEVER, THESE WERE NOT CONSIDERED BY THE LD. CIT(A) IN THE APPELLATE ORDER. CONSIDERING THE EXPLANATION OF ASSESSEE, WE ARE OF THE VIEW THAT THE MATTER REQUIR ES RECONSIDERATION AT THE LEVEL OF THE A.O. AS THE A.O . HAS NOT GIVEN PROPER OPPORTUNITY TO THE ASSESSEE. WE, ACCOR DINGLY, SET 6 ITA.NOS.304, 305, 306 & 306/DEL./2015 KISH EXPORTS LTD., GURGAON ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THE MATTER IN ISSUE TO THE FILE OF A.O. WITH A DIRECTIO N TO RE-DECIDE THE MATTERS AS PER LAW, BY GIVING REASONABLE AND SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSE E IS AT LIBERTY TO PRODUCE THE EVIDENCES BEFORE A.O. FOR FI NALIZATION OF THE MATTERS. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 16 TH FEBRUARY, 2018. VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. D BENCH, DELHI 6. GUARD FILE //BY ORDER// ASSISTANT REGISTRAR, ITAT : DELHI BENCHES : DELHI.