Jai Bharat Thread Mills, New Delhi V. ITO, Ward- 41(5), New Delhi

ITA 3372/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5390 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Assessee Lawyers: R P MALL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3372/DEL/2019 [ASSESSMENT YEAR: 2012-13] JAI BHARAT THREAD MILLS, VS. ITO, WARD 41(5), 71/4, SHIVAJI MARG, NEW DELHI NAJAFGARH ROAD, NEW DELHI 110 015 (PAN: AACFJ4619J) [APPELLANT] [RESPONDENT] ASSESSEE BY:SHRI R.P. MALL, ADVOCATE & SH. AJIT KUMAR JHA, ADVOCATE REVENUE BY: MS. PARUL SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS-15], NEW DE LHI DATED 14.1.2019 PERTAINING TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACT S IN UPHOLDING THE ADDITIONS MADE OF RS. 37,08,680/- IN RESPECT OF UNCONFIRMED SUNDRY CREDITORS IN THE ORDE R OF ASSESSMENT FRAMED U/S 143 (3) OF THE ACT. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE CESSATI ON OF LIABILITY HAS TO BE EITHER BY REASON OF OPERATION O F LAW, 2 I.E., ON THE LIABILITY BECOMING UNENFORCEABLE AT LA W BY THE CREDITOR AND THE DEBTOR DECLARING UNEQUIVOCALLY HIS INTENTION NOT TO HONOUR HIS LIABILITY WHEN PAYMENT IS DEMANDED BY THE CREDITOR. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN FAILING TO APPRECIATE THAT I N THE PRESENT CASE, ADMITTEDLY THERE IN NO DECLARATION BY THE ASSESSEE THAT IT DOES NOT INTEND TO HONOUR ITS LIAB ILITIES NOR IS THERE ANY DISCHARGE OF THE DEBT AND ON THE CONTRARY THE APPELLANT IN ITS BOOKS OF ACCOUNT HAD SHOWN THE AMOUNT AS OUTSTANDING AND HENCE THE PROVISIONS OF SECTION 41 (I) OF THE ACT IS INAPPLIC ABLE. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED 10 FAILING TO APPRECIATE THAT S INCE THE LEARNED AO HAS NOT BROUGHT OUT THE CIRCUMSTANCE WHICH LEAD TO ESTABLISH THAT REMISSION OR CESSATION OF THE LIABILITIES IN QUESTION HAS HAPPENED DURING THI S YEAR AND HENCE ADDITION MADE BY THE LEARNED AO AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS UNSUSTAINABLE IN LAW. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE DELAY O R NON-PAYMENT, EVEN WHEN THE ASSESSING OFFICER IS OF THE OPINION THAT LIKELIHOOD OF PAYMENT WAS REMOTE A S BUSINESS HAS STOPPED, WOULD BY ITSELF NOT DENOTE AN D MEAN CESSATION OR REMISSION OF LIABILITY. 3 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT LD. CIT(A) HAS PASSED THE EXPARTE IMPUGNED ORDER WI THOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. H E REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. ON THE CONTRARY, LD. DR RELIED UPON THE IMPUGNE D ORDER. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I AM OF THE VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HERD TO THE ASSESSEE. 4.1 KEEPING IN VIEW OF THE NON-COOPERATION OF THE A SSESSEE, I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEA R BEFORE THE LD. CIT(A) ON 23.04.2020 AT 10.00 AM FOR HEARING. THERE IS NO NEED TO ISSUE THE NOTICE BY THE LD. CIT(A) TO THE ASSESS EE, SINCE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:19-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 4