Mayfair Biotech Pvt. Ltd., Una V. DCIT, Palampur

ITA 319/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6906 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: R R THAKUR
• Keywords: Opportunity of being heard
• Section: 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO.319/CHD/2017 ASSESSMENT YEAR: 2012-13 MAYFAIR BIOTECH PVT. LTD. VS. DCIT 67A & 68, I.A. MEHATPUR, CIRCLE DISTT. UNA PALAMPUR PAN NO. AADCM8700B (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. R.R. THAKUR REVENUE BY : SH. MANJIT SINGH DATE OF HEARING : 05/07/2017 DATE OF PRONOUNCEMENT : 31/08/2017 ORDER PER B.R.R. KUMAR A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), PALAMPUR DT. 29/12/2016 ON THE FOLLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS WRONGLY DISMISSED THE APPEAL OF THE APPELLANT. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS NOT CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE WHILE DISMISSING THE APPE AL OF THE APPELLANT WHO WAS PREVENTED BY A SUFFICIENT CAUSE IN NOT PRODUCING TH E A/C BOOKS. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS WRONGLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER U/S 144. 4. THAT THE ORDER OF LD. COMMISSIONER OF INCOME TAX (A PPEALS) DISMISSING THE APPEAL OF THE APPELLANT MAY KINDLY BE SET ASIDE TO THE FILE OF TH E ASSESSING OFFICER AND CAN NOW PRODUCE THE BOOKS OF A/C WHICH HAVE BEEN RELEASED B Y THE DEBT RECOVERY TRIBUNAL. 5. ANY OTHER GROUND WHICH MAY BE TAKEN BEFORE THE HEAR ING OF APPEAL WITH THE APPROVAL OF THE HONBLE INCOME TAX APPELLANT TRIBUNAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED THE RETURN OF INCOME DECLARING INCOME AT RS. 95, 57,980/- ON 28-09-2012. THE CASE WAS PROCESSED U/S 143(1).THE ASSESSING OFFICER ASKED THE PRODUCT ION OF BOOKS OF A/C BUT THE APPELLANT COULD NOT PRODUCE AS THE RECORDS WAS LOCK ED IN THE FACTORY PREMISES WHICH WERE SEALED BY THE FINANCIAL INSTITUTION AGAI NST THE RECOVERY OF LOAN ADVANCED. THE LD. ASSESSING OFFICER COMPLETED ASSES SMENT U/S 144 MAKING 2 ADDITION OF RS. 39,80,333/- FOR NON FILING OF FORM 10CCB, RS. 5,41,066/- AS UNSECURED LOAN AND RS. 24,43,052/- OUT OF EXPENSES DEBITED TO P&L A/C COMPUTING THE INCOME OF RS. 1,65,22,431/-. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DI SMISSED THE APPEAL OF THE ASSESSEE. THE CIT(A) HAS FIXED THE HEARINGS ON VARIOUS DATES FROM 24/01/2014 TO 20/06/2014. THE ASSESSEE COULD NOT PRODUCE ANY C OGENT EVIDENCES EVEN DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT (A). THUS THE ORDER PASSED BY THE LD. CIT(A) WAS BASED ON THE FACTS BEFORE HER ONLY. 4. DURING THE HEARING BEFORE US THE LD. AR SUBMITTE D THAT THE ASSESSEE COULD NOT PRODUCE BOOKS OF ACCOUNT OR ANY OTHER DOCUMENT BEFORE THE LOWER AUTHORITY AS THE ASSESSEES RELEVANT DOCUMENT HAVE ATTACHED BY THE DEBT RECOVERY TRIBUNAL. 5. THE ASSESSEE PLEADED THAT THE ASSESSMENT ORDER W AS PASSED UNDER SECTION 144 AND ALSO THE ORDER OF THE LD. CIT(A) HA S BEEN PASSED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD. 6. THE ASSESSEE PLEADED THAT SINCE THE DEBT RECOVE RY TRIBUNAL HAS ORDERED TO VACATE THE ORDER OF ATTACHMENT AND THE ASSESSEE CAN PRODUCE THE BOOKS OF A/C BEFORE THE LD. ASSESSING OFFICER FOR ASSESSMENT PURPOSE. IT IS THEREFORE, PRAYED THAT THE CASE MAY KINDLY BE SET ASIDE TO THE FILE OF LD. ASSESSING OFFICER. 7. WE HAVE GONE THROUGH THE FACTS ON RECORD AND FOU ND THAT THE ADMINISTRATIVE BLOCK CONTAINING THE RELEVANT DOCUME NT HAVE BEEN TAKEN OVER BY THE SYNDICATE BANK BY SARFAESI ACT WHICH PREVENT ED THEM FROM FURNISHING THE REQUIRED INFORMATION. SINCE THE CORE ISSUES HAV E BEEN DEALT AT THE LEVEL OF ASSESSING OFFICER AS WELL AS THE LD. CIT(A) WITHOUT THE ASSESSEE HAVING 3 REASONABLE OPPORTUNITY OF BEING HEARD,THE CASE IS B EING SET ASIDE TO THE FILE OF THE AO TO FRAME THE ASSESSMENT DENOVO AFTER AFFORDING THE DUE OPPORTUNITY. THE OPPORTUNITY SO PROVIDED TO THE ASSESSEE, IT IS HOPED IS USED FULLY AND FAIRLY BY MAKING PROPER COMPLIANCE BEFORE THE AUTHORITIES IN THE EVENTUALITY OF ABUSE OF THE SAME BY NON PARTICIPATION FOR UNJUSTIFIABLE REA SONS THE AO WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MA TERIAL AVAILABLE ON RECORD. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (B.R .R.KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31/08/2017 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR