Shivam Cool Drinks Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 3329/DEL/2010

• Counselvise Citation: 332920114 RSA 2010
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 10-05-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 07-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHUMANA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH G BENCH G BENCH G BENCH G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.3329/DEL/2010 3329/DEL/2010 3329/DEL/2010 3329/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006- -- -07 0707 07 M/S SHIVAM COOL DRINKS M/S SHIVAM COOL DRINKS M/S SHIVAM COOL DRINKS M/S SHIVAM COOL DRINKS PVT.LTD., PVT.LTD., PVT.LTD., PVT.LTD., 24 2424 24- -- -A, SHIVAJI MARG, A, SHIVAJI MARG, A, SHIVAJI MARG, A, SHIVAJI MARG, NAJAFGARH NAJAFGARH NAJAFGARH NAJAFGARH ROAD, ROAD, ROAD, ROAD, DELHI DELHI DELHI DELHI 110 015. 110 015. 110 015. 110 015. PAN : AAKCS1465N. PAN : AAKCS1465N. PAN : AAKCS1465N. PAN : AAKCS1465N. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, CO.WARD CO.WARD CO.WARD CO.WARD 8(2), 8(2), 8(2), 8(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL AGGARWAL, ADVOCATE. RESPONDENT BY : MS.SHUMANA, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : IN THIS APPEAL BY THE ASSESSEE, FOLLOWING GROUNDS ARE RAISED:- 1. THAT THE ORDER IS AGAINST LAW AND FACTS OF THE CASE. 2. THAT THE LD.COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE A SSESSING OFFICER IN PASSING THE ORDER U/S 144 OF THE INCOME TAX ACT. 3. THAT THE LD.COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE A SSESSING OFFICER IN MAKING ADDITIONS BY ADDING THE LIABILITY OF RS.21,30,520/-. ITA-3329/DEL/2010 2 4. THAT THE LD.COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE A SSESSING OFFICER IN MAKING ADDITION OF ALL EXPENSES DEBITED TO THE PROFIT LOSS ACCOUNT WHEREAS THE LD. ASSESSING OFFIC ER ASSESSED THE SAME EXPENSES U/S 115W(3) FOR CALCULAT ION OF FBT. 2. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THIS CASE, THE NOT ICE OF HEARING WAS SERVED BY AFFIXTURE. THUS, IT IS CLEAR THAT NO NOT ICE WAS ACTUALLY RECEIVED BY THE ASSESSEE EVER. HE FURTHER POINTED OUT THAT EVEN IF THE SERVICE OF NOTICE MAY BE HELD TO BE TECHNICALLY VAL ID AND CONSEQUENTLY THE ASSESSMENT UNDER SECTION 144 TO BE VALID, EVEN IN THE ASSESSMENT UNDER SECTION 144, THE ASSESSING OFFICER IS SUPPOSE D TO MAKE A REASONABLE AND PROPER ESTIMATE OF INCOME. THAT THE ASSESSING OFFICER ADDED THE ENTIRE LIABILITY STANDING IN THE BALANCE SHEET PRESUMING TO BE UNEXPLAINED WITHOUT EVEN VERIFYING WHETHER THE L IABILITY IS NEW OR OLD. THE ASSESSING OFFICER ALSO DISALLOWED THE ENT IRE EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT. BY NO STRETCH OF IMA GINATION, SUCH ACTION OF THE ASSESSING OFFICER CAN BE HELD TO BE JUSTIFIE D. HE, THEREFORE, SUBMITTED THAT THE ORDERS OF AUTHORITIES BELOW MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSES SING OFFICER FOR READJUDICATION. 3. THE LEARNED DR RELIED UPON THE ORDERS OF AUTHORI TIES BELOW. 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. ON THE FACTS OF THE CASE, WE ARE OF THE FIRM OPINION THAT THE CASE REQUIRES R EADJUDICATION AT THE HANDS OF THE ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING ITA-3329/DEL/2010 3 OFFICER. WE DIRECT HIM TO ALLOW ADEQUATE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER MAKE THE ASSESSMENT AFR ESH DE-NOVO IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 10 TH MAY, 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 10.05.2012 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S SHIVAM COOL DRINKS PVT.LTD., 24-A, SHIVAJI MARG, NAJAFGARH ROAD, DELHI 110 015. 2. RESPONDENT : INCOME TAX OFFICER, CO.WARD 8(2), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR