M/s Ambition Poultry Farm, Tarn Taran V. The Income Tax Officer, Tarn Taran

ITA 313/ASR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9593 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2016
• Court: TRIBUNAL
• Assessee Lawyers: I S ARORA
• Keywords: Period of limitation; Non passing of speaking order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.313 (ASR)/2016 ASSESSMENT YEAR:2010-11 PAN: AAPFA0493E M/S. AMBITION POULTRY FARM, VS. INCOME TAX OFFICER , BACKSIDE MAHARAJA RANJIT SINGH WARD 1(3), PUBLIC SCHOOL, TARN TARAN. TARN TARAN. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. I.S. ARORA, CA RESPONDENT BY: SH.RAHUL DHAWAN, DR DATE OF HEARING: 01/08/2016 DATE OF PRONOUNCEMENT: 11/08/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2010-11, AGAINST THE ORDER, DATED 02.02.2016, PASSED BY THE LD. CIT(A)-1, AMRITSAR. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL: 1. THE ORDER OF THE ASSESSING OFFICER (AO) AND THA T OF LD. CIT(A) IS AGAINST LAW AND FACTS OF THE CASE. 2. THE LD. CIT(A) HAS ERRED IN DISMISSING THE GROU NDS OF APPEAL IN A SUMMARY MANNER WITHOUT EVEN EXPRESSING HIMSELF AND PASSING A NON-SPEAKING ORDER DISMISSING THE GROUNDS OF APPEAL IN JUST SIX SENTENCES AGAINST APPELLANTS WRITTEN~SU5MISSIONS RUNNING INTO 14 PAGES. LD. CIT( A) DID NOT APPRECIATE THE SUBMISSIONS OF THE APPELLANT DISTINGUISHING THE FACTS OF PRESENT CASE FROM THE F ACTS OF VRA COTTON MILLS P. LTD. VS. UNION OF INDIA (359 ITR 49 5) AND THUS SIMPLY BY-PASSED THE FACTS TO DENY THE JUSTICE . LD. CIT(A) DID NOT APPRECIATE THAT IN THE PRESENT CASE, SERVICE OF ITA NO.313/ASR/2016 A.Y. 2010-11 2 NOTICE WAS NEVER ON THE MERCY OF ASSESSEE, BUT WAS BEING EVIDENCED BY INDIAN POSTAL DEPARTMENT. 3. THE ADDITION MADE BY AO TO THE TUNE OF RS. 2294 76/- ON ACCOUNT OF BILLS OF AULAKH IRON STORE (SUPPLIER) WA S NOT BASED ON THE FACTS OF THE CASE AND THERE HAD NEVER BEEN A NY OCCASION OF ANY UNACCOUNTED MONEY CHANGING HANDS, N OR WAS ANY SUCH MATERIAL EVER PLACED ON RECORD BY THE AO. SIMPLY ADDING THE ABOVE AMOUNT OUT OF ENTRIES OF O NLY BILLS AND CHEQUES WAS JUST OUT OF BIASED APPROACH OF THE AO. AO RELIED ON ONE HAND-WRITTEN STATEMENT SUBMITTED BY T HE SUPPLIER TO MAKE THIS UNWARRANTED ADDITION AND IN T HE PROCESS, DID NOT DISCHARGE HIS ONUS TO SUMMON THE B OOKS OF SUPPLIER EVEN, WHAT TO TALK OF CROSS-EXAMINATION. 4. THE ADDITION MADE ON ACCOUNT OF CALCULATION DIF FERENCE IN INTEREST ON CAPITAL, THAT ALSO SUBJECT TO PENALTY U /S 271(1)(C), WAS MADE WITHOUT CONSIDERING AND APPRECIATING THE SUBMISSIONS OF THE ASSESSEE IN THIS REGARD. LD. CIT (A) ALSO DID NOT APPRECIATE THE FACTS AND JUDICIAL PRONOUNCE MENTS QUOTED. 5. AO WAS NOT JUSTIFIED IN MAKING ADDITIONS TO THE TRADING RESULTS TO THE TUNE OF RS. 125000/- WITHOUT ANY CON CRETE ADVERSE FINDINGS AND WITHOUT POINTING OUT ANY DEFEC TS IN THE BOOKS AND RECORDS OF THE ASSESSEE. 6. AO WAS NOT JUSTIFIED IN MAKING THE UNWARRANTED ADDITION OF RS. 6000/- ON ACCOUNT OF DIFFERENCE IN ENTRY OF ONE BILL, WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSEE T O EXPLAIN THE FACTS. THE DIFFERENCE WAS BASICALLY ON ACCOUNT OF MEASUREMENT DIFFERENCES OF THE BUILDING MATERIALS S UPPLIED, WHICH WAS ADJUSTED OUT OF THE TOTAL VALUE OF THIS B ILL. THIS FACT WAS NEVER GIVEN ANY CONSIDERATION EVEN BY THE ID. CIT(A). 7. AO AGAIN ERRED IN MAKING (REPEATING) ADDITIONS OF RS. 7237/-, 5423/- AND 2500/- ON ACCOUNT OF DEEMED PERS ONAL EXPENSES, WHEREAS, DEEMED PERSONAL EXPENSES WERE AL READY ADDED BACK BY THE ASSESSEE HIMSELF IN THE COMPUTATI ON OF INCOME ESTIMATING THE SAME AT RS. 5000/-. AO DID NO T CARE FOR THE SAME, AND THE ID. CIT(A) DID NOT APPRECIATE THE SAME AND SIMPLY DISMISSED THE SUBMISSIONS OF THE APPELLA NT IN THIS REGARD. 8. AO MADE AN UNWARRANTED ADDITION OF RS. 3500/- O N ACCOUNT OF NOTIONAL VALUE OF OLD TYRES AGAINST PURCHASE OF NEW TYRES FOR VEHICLE WITHOUT GIVING ANY OPPORTUNITY TO THE A SSESSEE AND WITHOUT REALIZING THE FACT THAT IT WAS A TRADE PRACTICE TO ITA NO.313/ASR/2016 A.Y. 2010-11 3 ADJUST OLD TYRES WHILE SELLING NEW TYRES FOR VEHICL ES. THE SAME FACT WAS EVEN NOT TAKEN CARE OF BY THE ID. CIT (A) EITHER. 2. AS PER GROUND NO.2, THE LD. CIT(A) HAS ERRED IN DISMISSING THE GROUND OF APPEAL TAKEN BY THE ASSESSEE BEFORE HIM, WITHOUT EXPRESSING HIMSELF AND PASSING A NON SPEAKING ORDER. 3. IN THIS REGARD, IT IS SEEN THAT IN THE IMPUGNED ORDER, THE LD. CIT(A) HAS OBSERVED AS FOLLOWS IN THE RELEVANT PORTION: 6. I HAVE GONE THROUGH THE GROUNDS OF APPEAL, SUBM ISSION, THE ASSESSMENT ORDER. IN THIS CASE ADDITION WAS MADE ON ACCOUNT OF TRADIN G ACCOUNT FOR RS. 1,25,000/-, ON ACCOUNT OF EXCESS INTEREST P AID TO THE PARTNERS REPRESENTING CONCEALED INCOME FOR RS. 86,0 42/-, ON ACCOUNT OF BILLS NOT ACCOUNTED FOR IN THE BOOKS REP RESENTING CONCEALED INCOME FOR RS. 2,29,476/-, ON ACCOUNT OF LESS AMOUNT OF BILL OF GARY CEMENT STORE TAKEN INTO ACCO UNT BY THE ASSESSEE FOR RS. 6000/- AND ADDITION ON ACCOUNT OF DISALLOWANCES ON THE GROUND OF CONVEYANCE EXPENSES , OUT OF REPAIR AND MAINTENANCE, OUT OF TELEPHONE EXPENSES, OUT OF TRAVELLING EXPENSES HAS BEEN MADE FOR RS. 7237/-, 3 500/- 5423/-,2500/- RESPECTIVELY. ATTENTION IS INVITED TO THE DECISION OF THE HONBLE HIGH COURT OF PUNJAB AND BARYANAI IN CWP NO. 18193 OF 2011 IN THE CASE OF VRA COTTON MILLS P. LTD .VS UNION OF INDIA, REPORTE D IN 359 ITR 495, IN WHICH THE HONBLE COURT HAVE OBSERVED THAT DATE OF RECEIPT OF NOTICE BY THE ASSESSEE IS NOT RELEVANT T O DETERMINE AS TO WHETHER THE NOTICE HAS BEEN ISSUED WITHIN THE PRESCRIBED PERIOD OF LIMITATION. THE EXPRESSION SER VE MEANS THE DATE OF ISSUE OF NOTICE. THE DATE OF RECEIPT OF NOTICE CANNOT BE LEFT TO BE UNDERMINED DEPENDENT UPON THE WILL OF THE ADDRESSEE. IN FACT THAT IS THE ONLY CONCLUSION THAT CAN BE ARRIVED AT TO THE EXPRESSION SERVE APPEARING IN S ECTION 143(2) OF THE ACT. AND ACCORDINGLY THE PETITION FILED BY T HE ASSESSEE WAS REJECTED. IT IS CLEAR FROM THE ASSESSMENT ORDER OF THE AO THA T THE ADDITIONS/DISALLOWANCES MADE ARE ON CONCRETE EVIDEN CE AND FACTS AFTER ALLOWING PROPER OPPORTUNITY TO THE ASSE SSEE. THUS ITA NO.313/ASR/2016 A.Y. 2010-11 4 ADDITIONS AND DISALLOWANCES MADE BY THE AO ARE JUST IFIED AND HENCE UPHELD. 4. IT IS ALSO OBSERVED THAT THE ASSESSEE HAD FILED THE WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) , WHICH HAVE BEEN REPRODUCED IN THE IMPUGNED ORDER FROM PAGES 3 TO 26. HOWEVER, AS CORR ECTLY QUESTIONED IN GROUND NO.2 AND AS ALSO ARGUED BY THE LD. COUNSEL F OR THE ASSESSEE BEFORE US, THE LD. CIT(A) HAS NOT DEALT WITH THESE WRITTEN SUBMISSIONS. 5. THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM I T APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE LD. CIT(A), TO BE DE CIDED AFRESH ON CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE AS SESSEE BEFORE THE LD. CIT(A), AS REPRODUCED IN THE IMPUGNED ORDER AT PAGE S 3 TO 26 THEREOF. THE ASSESSEE SHALL BE GRANTED DUE AND ADEQUATE OPPO RTUNITY OF HEARING. THE ASSESSEE SHALL, NO DOUBT, CO-OPERATE IN THE FRE SH PROCEEDINGS BEFORE THE LD. CIT(A). 6. ORDERED ACCORDINGLY. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/0 8/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 11/08/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. AMBITION POULTRY FARM, TARN TARA N. 2. THE ITO WARD 1(3), TARN TARAN 3. THE CIT(A), ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER