Mr. Sajeev Dhawan, New Delhi V. ITO, New Delhi

ITA 33/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74070 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 10-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

ITA NO. 33/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 33/DEL/2013 A.Y. : 2009 - 10 MR. SANJEEV DHAWAN, PROP. M/S OM GANESHA ENTERPRISES, C/O VINOD KUMAR BINDAL & CO., CHARTERED ACCOUNTANTS, SHIV SUSHIL BHAWAN, D-219, VIVEK VIHAR, PHASE-I, NEW DELHI 110 095 (PAN:AAFPD - 8922L) VS. ITO, WARD-29(3), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. VINOD KUMAR BINDAL, CA DEPARTMENT BY : S MT. RENUKA JAIN GUPTA, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS-XXV), NEW D ELHI DATED 26.11.2012 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE FIRST ISSUE RAISED READS AS UNDER:- THE CIT(A) ERRED IN LAW AND ON FACTS (A) IN CONFIRMING ALL THE ADDITIONS WITHOUT CONSIDERING THE CORRECT INCOME BASED ON MERCANTILE SYSTEMS OF ACCOUNTING SUBMITTED DURING THE APPELLATE PROCEEDINGS AS AGAINST THE HYBRID SYSTEM ITA NO. 33/DEL/2013 2 OF ACCOUNTING INCORRECTLY FOLLOWED BY THE APPELLA NT WHILE FILING THE RETURN OF INCOME; AND B) IN DENYING THE PROPER AND FAIR OPPORTUNITY TO THE APPELLANT TO BE ASSESSED AT HIS TRUE INCOME. THEREFORE, THE ADDITIONS SO CONFIRMED AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND FAIR TRIAL MUST BE DELETED. 3. IN THIS CASE ASSESSMENT WAS FRAMED BY THE AO U/S . 143(3) OF THE I.T. ACT AT THE INCOME OF RS. 3,09,64,940/- AS AGAINST RS. 4,86,284/- DECLARED BY THE ASSESSEE. AO HAS MADE T HE ADDITION U/S. 68; 41(1) & 40A(IA) OF THE I.T. ACT. 4. UPON ASSESSEES APPEAL LD. CIT(A) AFFIRMED THE ADDITION. 5. BEFORE US AT THE OUTSET, LD. COUNSEL OF THE A SSESSEE SUBMITTED THAT ASSESSEE HAS BEEN FOLLOWING HYBRID S YSTEM OF ACCOUNTING EARLIER. DURING THE APPELLATE PROCEED INGS ASSESSEE HAD RE-CASTED ITS ACCOUNTS AND SUBMITTED THE MERCANTILE SYSTEM OF ACCOUNT BEFORE THE LD. CIT(A). LD. CIT(A) HOWEVER, DID NOT ADJUDICATE ON THE BASIS OF THE CORRECT INCOME BASED ON MERCANTILE SYSTEM OF ACCOUNT SUBMITTED DURING APPELLATE PROCEE DINGS. IN THESE CIRCUMSTANCES, LD. COUNSEL OF THE ASSESSEE PR AYED THAT THE MATTER MAY BE REMITTED TO THE FILE OF THE AO TO CON SIDER THE RE-CAST ACCOUNTS BEING SUBMITTED BY THE ASSESSEE. LD. COUN SEL OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS NO T BEEN GIVEN FAIR AND PROPER OPPORTUNITY AND SO HE SUBMITTED THA T ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE. 5.1 LD. DR ON THE OTHER HAND RELIED UPON THE ORDE RS OF THE LD. CIT(A). HOWEVER, SHE DID NOT HAVE ANY SERIOUS OBJ ECTION TO THE ITA NO. 33/DEL/2013 3 REQUEST OF THE LD. COUNSEL OF THE ASSESSEE TO GIVE AN OPPORTUNITY BEFORE THE AO TO CANVASS THE CASE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. W E FIND THAT ASSESSEES REQUEST OF ONE MORE OPPORTUNITY BEFORE T HE AO MAY BE GRANTED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ACCORDINGLY, WE REMIT THIS ISSUE RAISED IN THE APPEAL TO THE FI LE OF THE AO FOR FRESH CONSIDERATION. NEEDLESS TO ADD THAT THE ASSE SSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7. SINCE WE HAVE REMITTED THE MATTER AT THE THRESHO LD TO THE FILE OF THE AO, WE ARE NOT ADJUDICATING UPON THE ISSUES RAISED ON MERITS BY THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/2/2014. SD/- SD/- [ [[ [A.D. JAIN A.D. JAIN A.D. JAIN A.D. JAIN] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 10/2/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 33/DEL/2013 4