M/s Vishwakarma Bajaj & sons, Lucknow V. ITO IV, Lucknow

ITA 320/LKW/2011

• Counselvise Citation: 32023714 RSA 2011
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-11-2011
• Assessment Year: misc
• Appeal Filed On: 30-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEFALI SWARUP
• Assessee Lawyers: MANOJ BHATNAGAR
• Keywords: Opportunity of being heard; Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER ITA NO. 320/LKW/2011 ASSESSMENT YEAR: 2005 - 06 M/S VISHWAKARMA BAJAJ & SONS 25, CARIAPPA ROAD, CAN TONMENT LUCKNOW V. ITO WARD IV LUCKNOW PAN: AAAFW3751G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. MANOJ BHATNAGAR, C.A. RESPONDENT BY: SMT. SEFALI SWARUP, D.R. DATE OF HEARING: 02.11.2011 DATE OF PRONOUNCEMENT: 16.11.2011 O R D E R PER S UN IL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS WHICH ARE AS UNDER: - 1. ON THE FACTS AVAILABLE ON RECORD THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW OUGHT TO HAVE HELD THAT T HE LABOUR EXPENSES OF RS . 43,450 / - WAS INCURRED FOR AND INCIDENTAL TO BUSINESS OF THE FIRM. 2. ON THE BASIS OF FACTS AVAILABLE ON RECORD THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW OUGHT TO HAVE DELETED THE ADHOC 5% DISALLOWANCE OF RS . 71,00 0 / - OUT OF LABOUR. : - 2 - : 3. ON THE BASIS OF FACTS AVAILABLE ON RECORD THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW OUGHT TO HAVE DELETED THE DISALLOWANCE OF RS. 94,168 / - OUT OF AMOUNT WRITTEN OFF AS UNRECOVERABLE. 4. ON THE BASIS OF FACTS AVAILABLE ON RECORD THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW OUGHT TO HAVE DELETED THE ADHOC 10% DISALLOWANCE OF RS . 28,000 / - OUT OF TELEPHONE EXPENSES. 5. ON THE BASIS OF RETROSPECTIVE AMENDMENT FROM 1.4.2005 IN THE PROVISIONS OF SECTION 40(A)(IA ) THE ADDITION OF RS . 2,25, 000/ - ; ON THE FACT THAT DEDUCTION OF TDS WAS MADE ON 31.3.2005 & THE SAME WAS DEPOSITED ON 18.06.2005 & 30.06 2005; OUGHT TO HAVE BEEN ALLOWED. 6. ON THE BASIS OF RETROSPECTIVE AMENDMENT FROM 1.4.2005 IN THE PROVISIONS OF SECTION 40(A)(IA) THE ADDITION OF RS . 1,81,112 / - ; ON THE FACT THAT DEDUCTION OF TDS WAS MADE ON 31.3.2005 & THE SAME WAS DEPOSITED ON 30.06.2005; OUGHT TO HAVE BEEN ALLOWED. 7 THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW WAS WITHOUT JURI SDICTION. 8. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW WAS CONTRARY TO LAW AND FACTS OF THE CASE AND WAS WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 9. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUND OF APPEAL. : - 3 - : 2. DURING THE COURSE OF HEARING, OUR ATTENTION WAS INVITED TO THE FACT THAT THE LD. CIT(A) HAS DECIDED THE APPEAL EX - PARTE. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT W HEN THE APPEAL WAS LISTED FOR FINAL HEARING, THE DIRECTOR OF T HE COMPANY COULD NOT APPEAR ALONG WITH HIS COUNSEL ON ACCOUNT OF HIS DEEP INVOLVEMENT IN PERSONAL AFFAIRS. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS DECIDED THE APPEAL SUMMARILY WITHOUT TAKING INTO ACCOUNT THE SERIOUS DISPUTES RAISED BY THE ASSESSEE ON THE ADDITIONS MADE BY THE ASSESSING OFFICER . T HEREFORE, THE LD. CIT(A) MAY BE DIRECTED TO ADJUDICATE UPON THE IMPUGNED ISSUES AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE AS SESSEE ASSURED THAT IF THE MATTER IS SET ASIDE TO THE FILE OF THE FIRST APPELLATE AUTHORITY, THE ASSESSEE WILL ATTEND THE PROCEEDINGS ON ALL THE DATES FIXED FOR AND WILL PRESENT COMPLETE FACTS OF THE CASE. HE PRAYED THAT IN THE INTEREST OF JUSTICE, THE MA TTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF THE IMPUGNED ISSUES ON MERIT. 3. HAVING GIVEN THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM THE CAREFUL PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT DURIN G THE PENDENCY OF APPEAL BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS FIXED VARIOUS DATES OF HEARING, BUT THE ASSESSEE DID NOT ATTEND IT PROPERLY . ON THE LAST DATE OF HEARING I.E. ON 1.12.2010, THE LD. COUNSEL FOR THE ASSESSEE APPEARED BEFORE THE LD. CIT(A) AND SOUGHT FOR ADJOURNMENT WHICH WAS GRANTED AND FIXED THE FINAL DATE OF HEARING AS 8.3.2011 . O N 8.3.2011 THE LD. COUNSEL FOR THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) . WE FURTHER FIND FROM THE ORDER OF THE LD. CIT(A) THAT THE LD. CIT(A) HAS SUMMARILY ADJUDICATED UPON THE ISSUES AND DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE. TO MEET THE INTEREST OF JUSTICE, WE THINK IT APPROPRIATE THAT ONE MORE OPPORTUNITY BE AFFORDED TO THE ASSESSEE TO PRESENT HIS : - 4 - : CASE PROPERLY BEFORE THE LD. CIT(A) . ACCORDINGLY THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE TO ADJUDICATE THE IMPUGNED ISSUES AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.2011. SD/ - SD/ - [B. R. JAIN ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16.11.2011 JJ: 1411 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR