M/s Premier Watch Industries, Parwanoo V. ITO, Parwanoo

ITA 314/CHANDI/2011

• Counselvise Citation: 31421514 RSA 2011
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILESH GUPTA
• Assessee Lawyers: T M SINGH
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 314/CHD/2011 ASSESSMENT YEAR: 2007-08 M/S PREMIER WATCH INDUSTRIES, V ITO, GUPTAJI BUILDING, SANT VIHAR, PARWANOO (HP). UNCHA PARWANOO, PARWANOO,( H.P.) PAN: AACFP-6364-N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.M.SINGH RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 15.12.2011 DATE OF PRONOUNCEMENT : 20.12.2011 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 17.01.2011 PASSED BY THE LD. CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'THE ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: 1. ORDER U/S 250 DT.17.01.2011 CONFIRMING DISALLOWANCE OF SALES INCENTIVE OF RS.24,33,014/- AND LOSS OF RS.6,45,950/- OUT OF RS.13,18,267/- PERTAINING TO CHENNAI AND COCHIN ATTRIBUTABLE TO PARWANOO ON THE BASIS OF ALLEGED 49% SALE FROM PARWANOO BEING ERRONEOUS AND UNCALLED FOR BE CANCELLED. 2. THE LD. CIT(A) SHIMLA HAS GROSSLY ERRED IN CONFIRMING ADDITION FOR HIGHER SALES INCENTIVE 2 AMOUNTING TO RS.28,25,202/- FROM PARWANOO TO AHMEDABAD ALTHOUGH PROVISION OF SECTION 80IA(8) OF THE ACT NOT APPLICABLE. 3. THE LD. CIT(A) SHIMLA HAS NOT CONSIDERED THE SUBMISSION MADE DURING APPEAL PROCEEDINGS PROPERLY I.E. FACT OF CHARGING HIGHER PRICE BY AHMEDABAD UNIT ON MATERIAL SOLD TO PARWANOO, EXPENDITURE CANNOT BE STATIC, NO SUPPORTING EVIDENCE DEDUCTED BY THE AO IN SUPPORT OF MARKET RATE OTHER THAN OF A.Y. 2006-07 IN ASSESSEE'S OWN CASE. 4. THE LD. CIT(A) SHIMLA HAS NOT CONSIDERED PROPERLY THAT SALE TO COCHIN BEING JUST 2.20% AND NIL TO CHENNAI BY PARWANOO AS PER FACTS ON RECORD AND NOT 49% AS TAKEN BY THE AO. 5. IT IS GROSSLY INCORRECT TO CONSIDER SALE BY AHMEDABAD TO CHENNAI & COCHIN OUT OF FINISHED GOODS PURCHASED FROM PARWANOO TO BE OF PARWANOO AS TAKEN BY AO. 6. APPELLANT CRAVES LEAVE TO ADD/ALTER, AMEND ANY GROUND OF APPEAL. . 3. DURING THE COURSE OF PRESENT APPELLATE PROCEEDIN GS, LD. 'AR' CONTENDED THAT THE LD. CIT(A) HAS NOT CONSIDER ED THE SUBMISSIONS FILED BY HIM IN THE COURSE OF APPELLATE PROCEEDINGS. HE ALSO REFERRED TO THE SUBMISSIONS F ILED BEFORE THE CIT(A) AS ANNEXED TO PAPER BOOK FILED BY THE ASSESSEE AT PAGE 44, WHICH CONTAINS LETTER DATED 14 .09.2010 ADDRESSED TO CIT(A) CONTAINING SUBMISSIONS OF THE A SSESSEE. 4. LD. 'DR' STATED THAT NO PREJUDICE IS CAUSED TO T HE REVENUE AS SUBMISSION OF THE ASSESSEE STATED TO BE NOT CONSIDERED FOR THE PURPOSE OF PASSING SPEAKING ORDE R. 3 5. WE HAVE PERUSED RIVAL SUBMISSIONS AND FOUND THAT LD. CIT(A) HAS INDICATED IN PARA 6 OF THE IMPUGNED APPE LLATE ORDER THAT FACTS AS WELL AS SUBMISSIONS OF THE APPE LLANT AND REMAND REPORT HAVE BEEN CONSIDERED BY THE CIT(A). HOWEVER, THERE IS NO DISCUSSION OF SUCH SUBMISSIONS IN THE ORDER PASSED BY THE CIT(A). IT IS WELL SETTLED PRO POSITION OF LAW THAT PASSING OF SPEAKING ORDER BASED ON EVIDENC ES IS THE CARDINAL REQUIREMENT OF ANY ORDER PASSED BY ANY QUA SI- JUDICIAL BODY. THEREFORE, IN THE INTEREST OF JUSTI CE, THE CASE IS RESTORED TO THE FILE OF THE CIT(A), FOR THE PURP OSE OF CONSIDERATION OF THE SUBMISSIONS FILED BY THE ASSES SEE AND ADJUDICATING THE ISSUE ACCORDINGLY, AS PER RELEVANT PROVISIONS OF LAW, BY WAY OF PASSING A SPEAKING ORD ER. IT IS IMPERATIVE ON THE PART OF THE CIT(A) TO AFFORD PROP ER AND REASONABLE OPPORTUNITY TO THE ASSESSEE AND THE ASSE SSEE IS ALSO DIRECTED TO RENDER NECESSARY COOPERATION IN TH E MATTER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DEC.,2011. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20 TH DEC.,2011. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH