M/s. Vanshika Motors Pvt. Ltd., Meerut V. ITO, Meerut

ITA 3372/DEL/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82190 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 18-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKAR SENIOR
• Keywords: Loose papers
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER ITA NO.3372/DEL./2014 (ASSESSMENT YEAR : 2009-10) ITA NO.6355/DEL./2014 (ASSESSMENT YEAR : 2010-11) M/S. VANSHIKA MOTORS PVT. LTD., VS. ITO, WARD 2 (4 ), 766, GAHERA HOUSE, NH 58, MEERUT. ROORKEE ROAD, MEERUT. (PAN : AACCV5241R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD GOYAL, ADVOCATE REVENUE BY : SHRI J.P. CHANDRAKAR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : ITA NO.3372/DEL/2014 THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE CIT (APPEALS), MEERUT DATED 25.03.2013 FOR THE ASSE SSMENT YEAR 2009- 10. 2. THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 3 0.09.2009 DECLARING INCOME AT RS.1,07,330/-. A SURVEY OPERAT ION WAS CARRIED OUT UNDER SECTION 133(A) OF THE INCOME-TAX ACT, 1961 ON 10.02.2009. DURING THE SURVEY, STOCK REGISTER, DAY BOOKS, CASH RECEIPT BOOKS, LOOSE PAPERS AND ITA NO.3372 &6355/DEL/2014 2 CPU WERE FOUND AND IMPOUNDED. STATEMENTS ON OATH W ERE RECORDED OF THE CHAIRMAN OF THE COMPANY, SHRI SURENDRA PAL SING H CHAUHAN AND ACCOUNTANT, SHRI SHIV KUMAR. THE ASSESSEE IS AN AU THORIZED DEALER OF WONDER FORD AND ALSO DEALING IN SALE AND PURCHASE O F FOUR WHEELER VEHICLES. THE ASSESSING OFFICER MADE AN ORDER U/S 143 (3) ON 30.12.2011 AT TOTAL INCOME OF RS.5,85,89,517/-. AGAINST WHIC H, THE ASSESSEE FILED AN APPEAL. THE CIT (A) DISMISSED THE APPEAL IN LIMINE . THE RELEVANT PARA OF CIT (A) ORDER READ AS UNDER :- 3. THE CASE WAS FIXED FOR HEARING VIDE NOTICE DATE D 27.07.2012 ON 08.08.2012. AN ADJOURNMENT APPLICATION WAS FILED AN D THE CASE WAS ADJOURNED TO 14.09.2012 AND SUBSEQUENTLY TO 10.10.2 012.-0N THIS DATE, ANOTHER ADJOURNMENT APPLICATION WAS FILED AND THE C ASE WAS ADJOURNED TO 09.11.2012. ON 08.11.2012 COLONEL S.P.S. CHAUHAN (R ETIRED), DIRECTOR, ATTENDED AND SOUGHT ADJOURNMENT THE CASE WAS ADJOUR NED TO 20.12.2012. IT WAS ALSO SPECIFIED THAT THIS WAS THE FINAL ADJOU RNMENT BEING GRANTED. HOWEVER, NONE ATTENDED ON THIS DATE. FRESH NOTICE W AS ISSUED ON 08.01.2013 FIXING THE CASE FOR 05.02.2013. ON THIS DATE COLONEL AGAIN ATTENDED AND SOUGHT ADJOURNMENT. ONCE AGAIN A FINAL ADJOURNMENT WAS GRANTED FOR 20.02.2013. A LETTER DATED 19.02.2013 R ECEIVED ON THIS OFFICE ON 22.02.2013 WAS FILED UNDER THE SIGNATURE OF COLO NEL CHAUHAN STATING THAT HE WOULD NOT BE ABLE TO ATTEND THE HEARING ON 20.02.2013 BECAUSE OF ILL HEALTH. SUBSEQUENTLY, ANOTHER NOTICE DATED 04.0 3.2013 WAS SENT FIXING THE CASE FOR HEARING ON 21.03.2013. ON THIS DATE, N ONE ATTENDED NOR WAS AN APPLICATION FOR ADJOURNMENT FILED. 4. IN VIEW OF THE ABOVE IT IS APPARENT THAT THE AP PELLANT IS NOT INTERESTED IN PURSUING ITS APPEAL. THEREFORE, THE A PPEAL-IS DISMISSED IN LIMINE. 3. AT THE OUTSET OF THE HEARING, LD. AR SUBMITTED T HAT THE ASSESSEE HAS PRAYED IN ITS GROUNDS OF APPEAL THAT IN THE SIMILAR CIRCUMSTANCES, THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 HAS BEE N SET ASIDE BY THE ITAT VIDE ORDER DATED 14.02.2014 IN ITA NO.1916/DEL /2012. IT WAS PLEADED BEFORE US THAT IN THIS YEAR ALSO, THE ASSES SMENT MAY BE SET ASIDE TO ITA NO.3372 &6355/DEL/2014 3 THE ASSESSING OFFICER AS FACTS FOR NON-COMPLIANCE R EMAIN THE SAME. IT WAS ALSO PLEADED THAT THE ASSESSMENT YEAR HAS BEEN FINALIZED BY THE ASSESSING OFFICER IN THE ABSENCE OF SURVEY DOCUMENT S IMPOUNDED BY THE ASSESSING OFFICER. THESE DOCUMENTS WERE IN THE CUS TODY OF THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT. HE PL EADED TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. LD. AR ALSO UNDERTAKES THAT ASSESSEE SHALL EXTEND FULL COOPERATION IN FINALIZAT ION OF THE ASSESSMENT. LD. DR WAS NOT HAVING ANY SERIOUS OBJECTION TO THE SETTING ASIDE THE ISSUES TO THE ASSESSING OFFICERS FILE. 4. AFTER HEARING BOTH THE SIDES, WE HOLD THAT IT SH ALL BE APPROPRIATE AND IN THE INTEREST OF JUSTICE IF THE ASSESSMENT IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO. IN THE SIMILAR CIRCUMSTANCES, ITAT HAS RESTORED THE ISSUES TO THE ASSESSING OFFICER WHILE DECIDING ITA NO.1916/DEL/2012 IN ASSESSEES O WN CASE FOR ASSESSMENT YEAR 2008-09. THE RELEVANT PARAS OF THE ORDER ARE REPRODUCED HEREUNDER :- 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS A ND CONTENTIONS OF BOTH THE PARTIES AND ON PERUSAL OF T HE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER, WE OBSERVE THA T THE ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 144 OF TH E ACT AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE COMMISS IONER OF INCOME TAX(A) IN ABSENCE OF THE ASSESSEE BY PASSING A VERY SHORT AND CRYPTIC ORDER. FORM PAGE N O. 4-8 OF THE PAPER BOOK FILED BY THE ASSESSEE, WE CLEARLY OBSERV E THAT THE ASSESSEE MADE REPEATED WRITTEN REQUEST TO THE ASSES SING OFFICER BY SUBMITTING LETTERS DATED 19.12.2010 AND 30.5.2011 A ND AGAIN DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE MADE WRITTE N REQUEST TO THE COMMISSIONER OF INCOME TAX(A) ON 9.12.2011 AND 13.5 .2013 WITH ITA NO.3372 &6355/DEL/2014 4 A HUMBLE REQUEST THAT THE COPIES OF THE IMPOUNDED D OCUMENTS ARE NEEDED TO PLACE THE ACTUAL FACTUAL MATRIX OF THE CA SE. THEREFORE, SUITABLE INSTRUCTIONS MAY BE GIVEN TO THE CONCERNED AUTHORITIES. 6. IN VIEW OF ABOVE FACTUAL POSITION, WE CLEARLY OB SERVE THAT THE ASSESSEE COULD NOT GET REQUIRED COPIES OF THE D OCUMENTS IMPOUNDED DURING THE SURVEY CONDUCTED ON THE PREMIS ES OF THE ASSESSEE ON 10.2.2009 AND BESIDES THIS, BOOKS OF AC COUNTS, SALES TAX RECORDS, OFFICE RECORDS MAINTAINED MANUALLY AND ELE CTRONICALLY BY THE ASSESSEE WERE ALSO RETAINED BY THE DEPARTMENT A ND DESPITE REPEATED REQUESTS OF THE ASSESSEE, NEITHER THE ORIG INAL BOOKS OF ACCOUNTS AND RECORD NOR ITS COPIES WERE PROVIDED TO THE ASSESSEE ENABLING HIM TO SUBMIT ITS EXPLANATION DURING THE A SSESSMENT AND APPELLATE PROCEEDINGS. 7. ACCORDINGLY, WE HOLD THAT THE ASSESSEE COULD NOT GET DUE OPPORTUNITY OF HEARING BEFORE THE AUTHORITIES BELOW AND THE ASSESSEE COULD NOT OFFER A SUITABLE EXPLANATION AND OTHER EV IDENCE AND DOCUMENTS TO SUPPORT ITS CASE EITHER BEFORE THE ASS ESSING OFFICER OR BEFORE THE APPELLATE AUTHORITY. WE ALSO OBSERVE THA T THE COMMISSIONER OF INCOME TAX(A) DECIDED THE APPEAL IN A CRYPTIC MANNER WITHOUT GIVING A SUITABLE NOTICE OF HEARING TO THE ASSESSEE. THUS, WE FIND IT APPROPRIATE TO SET ASIDE THE ORDER S OF THE AUTHORITIES BELOW AND TO RESTORE THE ENTIRE CONTROVERSY TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT THE ASSESSI NG OFFICER SHALL DECIDE THE CASE AFRESH BY AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSING OF FICER SHALL ALSO PROVIDE COPIES OF THE DOCUMENTS IMPOUNDED DURING TH E SURVEY AS WELL AS OTHER BOOKS OF ACCOUNTS AND RECORDS RETAINE D BY THE DEPARTMENT. ACCORDINGLY, GROUND NO. 1 OF THE ASSESS EE IS ALLOWED AS INDICATED ABOVE. 8. SINCE WE HAVE RESTORED THE ENTIRE CONTROVERSY TO THE FILE OF ASSESSING OFFICER WITH ABOVE DIRECTIONS, THEREFORE, OTHER GROUNDS OF THE ASSESSEE DO NOT SURVIVE FOR ADJUDICATION ON MER ITS AND WE ALSO DISMISS THE SAME. AFTER CONSIDERING ALL THE RELEVANT FACTS, WE RESTOR E THE ASSESSMENT TO ASSESSING OFFICER IN THIS ASSESSMENT YEAR I.E. 2009 -10. THE ENTIRE CONTROVERSY IS RESTORED TO THE FILE OF THE ASSESSIN G OFFICER WITH A DIRECTION ITA NO.3372 &6355/DEL/2014 5 THAT THE ASSESSEE SHALL COOPERATE IN THE ASSESSMENT PROCEEDINGS. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.6355/DEL/2014 5. SIMILARLY, IN THE ASSESSMENT YEAR 2010-11, THE A SSESSEE HAS COME UP IN APPEAL AGAINST THE ORDER OF THE CIT (APPEALS) , MEERUT DATED 14.11.2014. THE ASSESSMENT YEAR WAS FINALIZED U/S 144 OF THE INCOME-TAX ACT, 1961. MORE OR LESS THE FACTS REMAIN THE SAME, AS STATED ABOVE, WHILE DEALING WITH THE APPEAL FOR ASSESSMENT YEAR 2009-10 . IN THIS YEAR ALSO, WE FIND IT APPROPRIATE AND IN THE INTEREST OF JUSTI CE AND EQUITY TO RESTORE THE WHOLE ASSESSMENT TO THE FILE OF THE ASSESSING O FFICER WITH A DIRECTION THAT ASSESSEE SHALL COOPERATE WITH THE ASSESSING OF FICER AND SUBMIT ALL NECESSARY DOCUMENTS. WE ORDER ACCORDINGLY. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 23 RD DAY OF DECEMBER, 2014. SD/- SD/- (C.M. GARG) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 23 RD DAY OF DECEMBER, 2014 TS ITA NO.3372 &6355/DEL/2014 6 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR/ITAT