Girija Agrichemicals Limited(Formerly Aum Agrotech Limited), CHENNAI V. DCIT, CHENNAI

ITA 3217/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3994 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 24-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MSVM PRASADCIT
• Assessee Lawyers: B SURESH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , , # BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A. NOS. 3216 & 3217/MDS/2016 / ASSESSMENT YEARS : 2012-13 GIRIJA AGRICHEMICALS LIMITED, (FORMERLY, AUM AGROTECH LIMITED) PLOT NO. 179, TSS TOWERS, KAVURI HILLS, PHASE II, MADHAPUR, HYDERABAD 500 081 [PAN: AACEA 5321P] VS. DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(1), CHENNAI. ( / APPELLANT) ( / RESPONDENT) % & / APPELLANT BY : SHRI B. SURESH, CA )*% & / RESPONDENT BY : SHRI MSVM PRASAD, CIT & /DATE OF HEARING : 30.05.2017 & /DATE OF PRONOUNCEMENT : 26.07.2017 /O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAIN ST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-6, CHENNAI AGA INST THE ASSESSMENT ORDER AND THE PENALTY ORDER OF ASSESSMENT YEAR 2012-13 IN ITA NO. 261 & 262/CIT(A)- 6/15-16 DATED 16.09.2016, RESPECTIVELY. :-2-: I.T.A. N0S. 3216 & 3217/MDS/2016 2. IN THE ASSESSMENT MADE U/S. 143(3) R.W.S. 144 FO R ASSESSMENT YEAR 2012-13, THE ASSESSING OFFICER ADDED THE UNSECURED LOAN AT R S. 17.33 CRORES, AS THE ASSESSEE COULD NOT PROVE THE IDENTITY OF THE CREDITOR, GENUI NENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR AND ASSESSED 8% OF THE TURNOVER AS INCOME, AFTER REDUCING THE INCOME ADMITTED FROM IT UNDER BEST JUD GEMENT AS NONE APPEARED ON BEHALF OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE FI LED AN APPEAL BEFORE THE CIT(A). THE CIT(A) RELYING ON THE SUPREME COURT DECISION IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS REPORTED IN 167 I TR 471 (SC) CONDONED THE DELAY IN FILING THE APPEAL. HOWEVER, HE FOUND THAT THE ASSE SSEE BEING NOT SERIOUS IN PERSUING ITS APPEAL, DISMISSED THE APPEAL. AGGRIEVED AGAINS T THAT ORDER, THE ASSESSEE IS IN APPEAL IN ITA NO. 3216/2016. 3. THE AO LEVIED PENALTY U/S. 271(1)(C) BY AN ORDER DATED 28.09.2015. AGGRIEVED AGAINST THAT ORDER THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). WHILE CONDONING THE DELAY IN FILING THE APPEAL, THE CIT(A ) DISMISSED THE APPEAL ON THE SAME REASON FOR WHICH HE DISMISSED THE QUANTUM APPE AL. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED THE APPEAL IN ITA NO. 321 7/MDS/2016. SINCE, BOTH OF THEM ARE INTERCONNECTED, THEY ARE HEARD TOGETHER AND DIS POSED OFF TOGETHER IN THIS ORDER FOR THE SAKE OF CONVENIENCE. 4. THE AR INVITED OUR ATTENTION TO THE AFFIDAVIT FI LED FOR SEEKING CONDONATION OF DELAY IN FILING THE APPEALS WHICH WAS REPRODUCED BY THE CIT(A) IN HIS ORDERS AND PLEADED THAT THERE WAS DISPUTE AND DIFFERENCE BETWE EN THE DIRECTORS/SHAREHOLDERS, :-3-: I.T.A. N0S. 3216 & 3217/MDS/2016 THEY WERE ON LOGGER HEADS ETC., AND THERE WAS NO RE PRESENTATIVE ON BEHALF OF THE ASSESSEE. IN SUCH FACTS AND CIRCUMSTANCES, THE CIT (A) ERRED IN GIVING A SHORT NOTICE DURING THE FIRST HEARING AND A TIME OF ONE DAY DURI NG THE FINAL HEARING TO THE ASSESSEE WHO HAS TO COME FROM HYDERABAD AND ADJOURN ED THE DATE OF HEARING FROM 24.06.2016 TO 15.07.2016, SUMOTO, WHICH WAS NOT CON VENIENT TO THE APPELLANT AND HENCE, NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSES SEE. ON THE OTHER HAND, THE DR INVITED OUR ATTENTION TO PARA 4.1/4.2 OF THE ORDERS OF CIT(A), WHICH ARE SIMILARLY WORDED AND HENCE PARA 4.1 IS EXTRACTED AS UNDER: 4.1 NOTICE UNDER ITNS 37 WAS SENT TO THE APPELLANT ON 10.05.2016 FIXING THE HEARING ON 27.05.2016. ON 27.05.2016 AN ADJOURNMENT WAS FILED BY THE COUNSEL FOR THE APPELLANT. THEREAFTER THE CASE REFIXED BY ISSUING ITNS 37 ON 30.05.2016 FIXING THE HEARING ON 24.06.2016. TH ERE WAS NO COMPLIANCE ON 24.06.2016. IN VIEW OF THE PRINCIPLES OF NATURAL J USTICE A THIRD OPPORTUNITY WAS GIVEN TO THE APPELLANT COMPANY HEARING BY FIXING TH E HEARING ON 15.07.2016. AGAIN, THERE WAS NO COMPLIANCE FROM THE APPELLANT C OMPANY HOWEVER THE WRITTEN ADJOURNMENT PETITION WAS FILED IN THIS OFFI CE ON 18.07.2016 I.E., AFTER THE DATE OF HEARING POST FACTO. ACCEPTING THE APPELLAN T COMPANY REQUEST, YET ANOTHER WAS GIVEN BY ITNS 37 DATED 06.09.2016 FIXIN G HEARING ON 15.09.2016. ON 14.09.2016 YET ANOTHER ADJOURNMENT PETITION HAS BEEN FILED SEEKING ANOTHER ADJOURNMENT. AND SUBMITTED THAT THE CIT(A) HAS GIVEN ADEQUATE OP PORTUNITY. THE AR PLEADED THAT THE NOTICE FIXED FOR HEARING ON 15.09.2016 WAS NOT SERVED TILL 14.09.2016 AND THE REPRESENTATIVE HAS TO COME FROM HYDERABAD. HOW EVER, THE CIT(A) PASSED ORDERS ON 16.09.2016 AND HENCE THERE WAS NO OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. :-4-: I.T.A. N0S. 3216 & 3217/MDS/2016 5. WE HEARD THE RIVAL SUBMISSIONS. ON THE FACTS AN D CIRCUMSTANCES, WE ARE OF THE VIEW THAT IN THE INTERESTS OF JUSTICE, THE ASSE SSEE SHOULD BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. IN VIEW OF THAT, WE SE T ASIDE THE ORDER OF THE CIT(A) IN ITA NO. 261/CIT(A)-6/15-16 DATED 16.09.2016 AND REM IT THE ISSUE BACK TO THE AO FOR FRESH ASSESSMENT AFTER AFFORDING ADEQUATE OPPOR TUNITY TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COMPLY WITH THE REQUIREMENTS OF THE AO IN ACCORDANCE WITH LAW. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOW ED. SINCE, THE QUANTUM APPEAL IS ALLOWED, ON SIMILAR GROUNDS, THE CIT(A) ORDER IN IT A NO. 262/CIT(A)-6/15-16 DATED 16.09.2016 ON THE PENALTY ORDER IS SET ASIDE AND TH E ISSUE IS REMITTED BACK TO THE AO FOR AFRESH CONSIDERATION. 6. IN THE RESULT, THE ASSESSEES APPEAL IN ITA NO. 3216/MDS/2016 IS ALLOWED AND THE ASSESSEES APPEAL IN ITA NO. 3217/MDS/2016 IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON WEDNESDAY, THE 26 TH DAY OF JULY, 2017 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) ! ' /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ' /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 26 TH JULY, 2017 JPV & )12 32 /COPY TO: 1. %/ APPELLANT 2. )*% /RESPONDENT 3. 4 ( )/CIT(A) 4. 4 /CIT 5. 2 ) /DR 6. 7 /GF