M/s. Prem Pharma, BIKANER V. ITO, BIKANER

ITA 334/JODH/2014

• Counselvise Citation: 33423314 RSA 2014
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 334 /JODH/201 4 (A.Y. 200 9 - 1 0 ) M/S. PREM PHARMA , SADUL COLONY, BIKANER. VS. ITO , WARD - 2(2) , BIKANER PAN NO. AACFP 1915 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN & SHRI RAJENDRA JAIN. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 1 2 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 13 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24 /0 2 /201 4 OF L D . CIT(A), BIKANER . 2 REGISTRY HAS POINTED OUT THAT THE APPEAL IS BARRED BY LIMITATION BY 10 DAYS . THE ASSESSEE MOVED AN APPLICATION FOR CONDONATION OF DELAY STATING THEREIN AS UNDER: - 2 WITH REFERENCE TO ABOVE I BEG TO STATE THAT I RECEIVED THE ORDER OF CIT (APPEALS) , BIKANER DATED 24/02/2014 , IN CASE OF M/S. PREM PHARMA ON 13/03/2014. BEING AGGRIEVED BY THE SAID ORDER I W ANTED TO FILE APPEAL BEFORE ITAT BUT SINCE I SUDDENLY FELL ILL AND COULDNT ABLE TO FILE APPEAL WITHIN PRESCRIBED TIME LIMIT SINCE ALL TAX MATTERS WAS HANDED BY ME ONLY. HENCE YOU ARE REQUESTED TO CONDONE DELAY IN FILING APPEAL BEFORE YOU. IN SUPPORT OF THE ABOVE, SHRI AJAY KUMAR SHARMA PARTNER OF THE ASSESSEE FIRM FILED A CERTIFICATE ISSUED BY BHIWANI HOSPITAL & RESEARCH CENTRE , HOSPITAL ROAD, BIKANER. 3. CONSIDERING THE ABOVE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE IN FILING APPEAL IN TIME . ACCORDINGLY, THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 4. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) , BIKANER IS NOT JUSTIFIED IN PASSING THE EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) , BIKANER IS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. OF THE VARIOUS EXPENSES @ 20% RS. 78765.00 ON THE TOTAL EXPENSES CLAIMED AT RS. 393826.00 BY ASSUMING PART EXPENSES FOR PERSONAL USE, IN EXPARTE ORDER. 3 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. OF PARTNER REMUNERATION AMOUNTING TO RS. 456483.00 BY ASSUMING EXCESS CLAIM WHILE SAME IS AUTHORIZED BY PARTNERSHIP DEED AND WITHIN LIMIT U/S. 40(B)(V) OF I.T. ACT, IN EXPARTE ORDER. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING INTER EST CHARGED BY A.O. U/S. 234A RS. 10921.00 AND INTEREST U/S. 234B RS. 54417.00 IN EXPARTE ORDER. 3 5. THAT THE APPELLANT RESERVE THE RIGHT TO ADDITIONAL OR ALTER ANY GROUND OF APPEALS. 6. THAT THE PETITIONER PRAYS FOR JUSTICE AND RELIEF. 5. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE ACTION OF THE LD. CIT(A) IN PASSING EXPARTE ORDER . 6 . FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 23/09/2009 DECLARING AN INCOME OF RS. 6,78,140/ - , HOWEVER, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER AT AN INCOME OF RS. 12,13,390/ - BY MAKING THE VARIOUS ADDITIONS . AGAINST THE ASSESSMENT ORDER DATED 28/12/2011 PASSED BY THE ASSESSING OFFICER, ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT(A) , WHO DECIDE D THE APPEAL EXPARTE BY MENTIONING THAT NONE ATTENDED ON THE DATE OF HEARING WHENEVER THE CASE WAS FIXED . HOWEVER, HE HAS NOT MENTIONED ANY WHERE IN THE IMPUGNED ORDER AS TO WHETHER THE ASSESSEE WAS SERVED W ITH A NOTICE OF HEARING. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM AUDI ALTER A M P E RT A M . IT IS ALSO NOTICED THAT THE ASSESSING OFFICER WHILE MAKING THE DISALLOWANCE @ 20% OUT OF THE EXPENSES HAS NOT GIVEN ANY BASIS AND THE LD. CIT(A) SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN A SLIP SHOD MANNER. WE, T HEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE L D. CIT(A) AND THE 4 CASE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ( ORDER PRONOUNCED IN THE COURT ON 13 TH AUGUST , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .