M/s B.T. Technet Ltd., New Delhi V. ACIT, New Delhi

ITA 312/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87188 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A MISHRA
• Keywords: Opportunity of being heard; Principle of natural justice; Accommodation entries

Judgement Text

ITA NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT A ND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 A.Y RS . : 2001 - 02 , 2002 - 03, 2003 - 04, 2004 - 05, 2005 - 06, 2006 - 07 & 2007 - 08 M/S B.T. TECHNET LTD., H - 108, 2 ND FLOOR, NEW ASIATIC BUILDING, NEW DELHI 110 001 (PAN: AABCB9573F) VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 9 NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K. SAMPATH, ADV. & RAJA KUMAR, ADV. DEPARTMENT BY : SMT. A. MISHRA, CIT(DR) DATE OF HEARING : 31 - 3 - 201 5 DATE OF ORDER : 3 1 - 3 - 201 5 ORDER PER H.S. SIDHU : JM TH ESE ARE 07 APPEAL S FILED BY THE ASSESSEE EMANATE OUT OF THE SEPARATE O RDER S PASSED BY THE LD. CIT(A) - II, DELHI PERTAINING TO ASSESSMENT YEAR S 2001 - 02 TO 2007 - 08 . SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON, WE ARE THEREFORE, PROCEEDING TO DISPOSE OF THEM BY THIS CONSOLIDATE D ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE HAS RAISED ALMOST SAME AN D IDENTICAL GROUNDS OF APPEAL IN ALL THE 7 APPEALS. FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING THE FOLLOWING GROUNDS RAISED IN ITA NO. 307/DEL/2011 (A.Y. 2001 - 02). 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL. ITA NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 2 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN NOT DECIDING EACH GROUND OF APPEAL INDEPENDENTLY AND SEPARATELY. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN CONFIRMING THE ORDER OF THE AO. 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DIRECTLY OR INDIRECTLY HOLDING THAT THE AO RIGHTLY REJECTED THE BOOKS OF ACCO UNTS AND HAS RIGHTLY APPLIED PROVISO TO SECTION 145(3). 5) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DIRECTLY OR INDIRECTLY SUSTAINING THE DOUBLE ADDITION MADE BY THE AO ON ACCOUNT OF COM MISSION WHICH HAS ALREADY BEEN DECLARED AND ACCEPTED BY THE AO AS PER P&L ACCOUNT. 6) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DIRECTLY OR INDIRECTLY HOLDING THAT 145(3) HAVE BEEN RIGHTL Y APPLIED EVEN WHEN THERE ARE NO BOOKS OF ACCOUNTS. 7) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN CONFIRMING THE ESTIMATED INCOME OF RS.51,08,746/ - ON ACCOUNT OF ACCOMMODATION BUSINESS INC ORRECTLY AND UNJUSTIFIABLY MADE BY THE ASSESSING OFFICER. 8) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS INCORRECT AND UNJUSTIFIED IN CONFIRMING THE ADDITION OF RS.99,461/ - ON ACCOUNT OF ACCOMMODATION ENTRIES BUSINESS INCORRECTLY AND UNJUSTIFIABLY MADE BY THE ASSESSING OFFICER. ITA NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 3 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NEED NOT BE REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) HAS PASSED THE IMPUGNED ORDER EXPARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HENCE, HE REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE LD. CIT(A) , WITH THE DIRECTION TO PROVIDE SUFFICIENT OPP ORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM BEFORE HIM. 5. LD. DR HAS NOT RAISED ANY SERIOUS OBJECTION ON THE REQUEST OF THE ASSESSEE S COUNSEL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES ALONGWITH THE SMALL PAPER BOOK FILED BY THE ASSESSEE WHICH INCLUDES VARIOUS CASE LAWS ON THE ISSUE S, IN DISPUTE. WE HAVE ALSO PERUSED THE IMPUGNED ORDER THOROUGHLY AND WE ARE OF THE VIEW THAT LD. CIT(A) VIDE PARA NO. 3 OF HIS IMPUGNED ORDER HAS STATED THAT THE ASSESSEE S APPEAL WAS FIXED FOR HEARING VIDE NOTICE DATED 25.5.2010 FOR 10.6.2010 IN RESPONSE TO WHICH NONE APPEARED. THE APPEAL WAS AGAIN FIXED FOR HEARING ON 30.8.2010 AND NONE APPEARED AND NO ADJOURNMENT WAS SOUGHT. THE APPEAL WAS AGAIN FIXED FOR HEARING VIDE NOTICE DATED 13.9.2010 FOR 29.9.2010 AND AGAIN NONE APPEARED. AGAIN APPEAL WAS FIXED FOR HEARING ON 13.10.2010. ON THIS DAY ALSO NEITHER ANYONE ATTENDED NOR ANY ADJOURNMENT PETITION WAS FILED. LASTLY, THE LD. CIT(A) HAS DISPOSED OFF THE APPEAL FILED BY THE ASSESSEE ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD, EXPARTE ASSESSEE AND ESTIMATED THE INCOME OF THE ASSESSEE ON THE BASIS OF MATERIAL ON RECORD BY APPLYING THE PROVISIONS OF SECTION 145(3) OF THE I.T. ACT, 1961. 6.1 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS ISSUED NOTICE S TO THE ASSESSEE FOR A VERY SHORT DURATION, AS MENTIONED ABOVE. I N OUR VIEW SUFFICIENT TIME SHOULD HAVE BEEN GRANTED TO THE ASSESSEE BY THE LD. CIT(A) TO ITA NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 4 SUBSTANTIATE ITS CLAIM BEFORE HIM. BUT LD. CIT(A) HAS ISSUED A NOTICE TO THE ASSESSEE FOR A VERY SHORT PERIOD AND DECIDE THE ISSUE IN DISPUTE AGAINST THE ASSESSEE EXPARTE WHICH IS CONTRARY TO THE PRINCIPL E OF NATURAL JUSTICE. SECONDLY, AFTER GOING THROUGH THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), WE ARE ALSO OF THE VIEW THAT LD. CIT(A) HAS ALSO NOT PASSED A SPEAKING ORDER ON THE ISSUE S IN DISPUTE , WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE, WHIC H IS ALSO NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE SETTING ASIDE THE ISSUES INVOLVED IN THE PRESENT APPEAL S TO THE FILE OF THE LD. CIT(A) TO DECIDE ALL THE ISSUES RAISED BY THE ASSESSEE, AFRESH, UNDER THE LAW, AFT ER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEN PASS A SPEAKING ORDER ON ALL THE ISSUES, IN DISPUTE. 7 . IN THE RESULT, ALL THE 07 APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 3 1 - 3 - 201 5 . S D / - S D / - [ G.D. AGRAWAL ] [ H.S. SIDHU ] VICE PRESIDENT JUDICIAL MEMBER DATE 3 1 / 3 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO S . 307, 308, 309, 310, 311, 312, & 313/DEL/2011 5