Shri Umesh Chopra, New Delhi V. ITO, New Delhi

ITA 3191/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97036 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 22-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Assessee Lawyers: K R MANJANI
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -2, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 3191/DEL./2015 : ASSTT. YEAR : 2009-10 UMESH CHOPRA 8, SEHGAL COLONY, CIVIL LINES NEW DELHI VS ITO WARD 20(2) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. ACXPC6508L APPELLANT BY : SH. K. R.MANJANI, ADV. RESPONDENT BY : SH. YATENDR A SINGH, SR. DR DATE OF HEARING : 22.07.2015 DATE OF PRONOUNCEMENT :14 .08.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25.02.2015 OF THE LD. CIT(A)-XII, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- 1. THE LD. A.O. AS WELL AS THE LD. CIT(A ) HAVE ERRED ON FACTS AS WELL AS IN LAW IN DISALLOWING LOSS WITH OUT FINDING ANY DEFECT AND EVEN THOUGH THE MISTAKES POI NTED OUT WERE RECONCILED QUA THE RETURN OF INCOME FOR TH E LAST YEAR WHICH WAS FILED IN REGULAR COURSE. 2. THE LD. CIT(A) HAS ALSO ERRED ON FACTS AS WEL L AS IN LAW IN STATING THAT MISTAKE SHOULD HAVE BEEN GOT CORREC TED FROM THE AUDITOR WHICH IS NOT NECESSARY WHEN THOSE FIGUR ES ITA NO.3191/DEL/2015 2 STAND RECONCILED WITH THE FIGURES OF LAST YEARS RE TURN ALREADY ON RECORD IN REGULAR COURSE. IT IS THEREFORE PRAYED THAT THE LOSS MAY KINDLY BE ORDERED TO BE ALLOWED. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FI LED THE RETURN OF INCOME ON 30.9.2009 DECLARING A LOSS OF RS. 3,59,47 7/-. THE AO FRAMED THE ASSESSMENT U/S 144 OF THE ACT AND DISALL OWED THE LOSS CLAIMED BY THE ASSESSEE. ACCORDINGLY TOTAL INCOME W AS ASSESSED AT NIL. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATT ER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSION WHICH HAS BEEN INCORPORATED BY THE LD. CIT(A) IN PARA 7 OF THE IMPUGNED ORDER FOR THE COST OF REPETITION THE SAME IS NOT REPRODUCED HEREIN. THE L D. CIT(A) OBSERVED THAT WHEN THE WRITTEN SUBMISSIONS DATED 19.3.2013 W ERE FURNISHED, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE WILL FI LE THE DOCUMENTS ON 22.3.2013 BUT NO SUCH DOCUMENTS WERE FILED. THE LD. CIT(A) ALSO POINTED OUT THAT THERE WERE CERTAIN DISCREPANCIES A ND CONTRADICTION IN THE BOOKS OF ACCOUNTS AND THE ASSESSEE WAS REQUIRED TO GET THE ACCOUNTS OF ALL HIS CONCERNS AUDITED AND INCORPORAT ED THE CONSOLIDATED FIGURES IN THE TAX AUDIT REPORT WHICH HE FAILED TO DO SO. THE LD. CIT(A) ACCORDINGLY CONFIRMED THE DISALLOWANCE MADE BY THE AO. NOW THE ASSESSEE IS IN APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE NEITHER THE AO NOR THE LD. CIT(A) HAS GIVEN ANY REASON FOR DISA LLOWING THE LOSS ITA NO.3191/DEL/2015 3 CLAIMED BY THE ASESSEE. IT WAS FURTHER SUBMITTED TH AT THE ASSESSEE COMPLIED THE NOTICES ISSUED BY THE AO AND ATTENDED THE PROCEEDINGS, THEREFORE, THE ASSESSMENT FRAMED U/S 144 OF THE ACT WAS NOT JUSTIFIED PARTICULARLY WHEN NO REASON HAS BEEN ASSIGNED FOR R EJECTING THE BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT. IN HIS RIVAL SUB MISSIONS, THE LD DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BE LOW. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT APPEARS THAT THE AO BY FRAMING THE ASSESSMENT U/S 1 44 OF THE ACT CONSIDERED THE REPLY GIVEN BY THE ASSESSEE AS VAGUE AND IRRELEVANT, HOWEVER, NO REASON HAS BEEN ASSIGNED TO SUBSTANTIAT E THAT AS TO HOW THE REPLY OF ASSESSEE WAS VAGUE OR IRRELEVANT. IN THE INSTANT CASE, THE LD. CIT(A) ALTHOUGH REPRODUCED THE SUBMISSIONS OF T HE ASSESSEE IN PARA 7 OF THE IMPUGNED ORDER, HOWEVER, WHILE CONFIR MING THE DISALLOWANCE MADE BY THE AO, HE HAS NOT STATED HOW AND IN WHAT MANNER THE EXPLANATION GIVEN BY THE ASSESSEE IN HIS WRITTEN SUBMISSION DATED 19.3.2013 WAS NOT RELEVANT OR IT W AS WRONG. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMP UGNED ORDER AND REMAND THE CASE BACK TO THE FILE OF THE AO TO BE AD JUDICATED AFRESH, INACCORDANCE WITH THE LAW, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.3191/DEL/2015 4 IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 14/08/2015). SD/- (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 14/ 08/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.3191/DEL/2015 5 DATE INITIAL 1. DRAFT DICTATED ON 11.08.2015 2. DRAFT PLACED BEFORE AUTHOR 11.08.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON 14.8.2015 PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.