BG Freight Shoppe India Pvt. Ltd., New Delhi V. ITO ward 4(1), New Delhi

ITA 3442/DEL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5767 (ITAT-DELHI)
• Duration Of Justice: 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3442/DEL/2019 ASSESSMENT YEAR: 2013-14 BG FREIGHT SHOPPE INDIA PVT. LTD. VS. ITO, WARD 4( 1), 4/2514, MAIN ROAD, NEW DELHI BIHARI COLONY, FIRST FLOOR, NEAR GALI NO. 11, SHAHDARA, DELHI 32 (PAN: AACCB4250A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SURESH KUMAR GUPTA, CA REVENUE BY : SMT. NAINA SOIN KAPIL, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 16.1.2019 OF THE LD. CIT(A)-2, NEW DELHI PERTAININ G TO ASSESSMENT YEAR 2013-14 ON THE FOLLOWING GROUNDS:- I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT ADJUDICATING THE GR OUNDS RAISED THEREIN ON MERITS. 2 II) THE LD. CIT(A) AND THE AO HAS ERRED IN LAW AND ALS O IN FACTS IN NOT APPRECIATING THE FACT THAT THE ADDITIO N OF RS. 1,34,10,000/- @10% OF THE SHARE SECURITY PREMIUM PERTAINS TO ACCEPTANCE OF SHARE CAPITAL INCLUDING PREMIUM FOR ASSESSMENT YEAR 2012-13 AND NO ADDITION FOR THE TRANSACTIONS DONE IN AY 2012-13 CAN BE MADE IN DIFFERENT ASSESSMENT YEAR WHICH IS 2013-14. III) THE ORDERS OF THE AUTHORITIES BELOW HAVE BEEN PASS ED WITHOUT PROVIDING REASONABLE OPPORTUNITY TO PRESENT THE CASE BEFORE THEM AND WHATEVER OPPORTUNITY WAS PROVI DED THE SAME COULD NOT BE AVAILED DUE TO THE NON-AVAIL ABILITY OF THE DIRECTOR ON ACCOUNT OF FAMILY PROBLEMS IN TH E NATIVE VILLAGE. IV) THE AO HAS ERRED IN LAW AND IN FACTS OF THE CASE IN GIVING A FARFETCHED FINDING BASED ON NO MATERIAL THAT APPE LLANT HAS GIVEN WRONG DATA RELATING TO BANK ACCOUNT IN TH E RETURN OF INCOME WHEREAS THE BANK ACCOUNT DETAILS GIVEN IN THE RETURN OF INCOME ARE CORRECT AND AO HAS MADE INQUIRY FROM THE WRONG BANK TO GIVE THE ABOVE ADVER SE FINDING WHICH IS THE BASIS FOR MAKING ADDITION UNDE R APPEAL. THE ABOVE FINDING NEED BE QUASHED. V) THE APPELLANT CRAVES LEAVE TO ADD, DELETE, MODIFY / AMEND THE ABOVE GROUNDS OF APPEAL WITH THE PERMISSI ON OF THE HONBLE APPELLATE AUTHORITY. 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ADJUDICATING THE GROUNDS RAISED THEREIN ON MERITS. HE FURTHER STATED THAT LD. CIT(A) AS WELL AS AO HAVE NOT APPRECIATED THE FACT THAT THE ADDITION OF RS. 1,34,10,000/- @10% OF THE SHARE SEC URITY PREMIUM PERTAINS TO ACCEPTANCE OF SHARE CAPITAL INCLUDING PREMIUM FOR ASSESSMENT YEAR 2012-13 AND NO ADDITION FOR THE TRA NSACTIONS DONE IN AY 2012-13 CAN BE MADE IN DIFFERENT ASSESSMENT YEAR WHICH IS 2013-14. IT WAS FURTHER SUBMITTED THAT THE ORDERS O F THE AUTHORITIES BELOW HAVE BEEN PASSED WITHOUT PROVIDING REASONABL E OPPORTUNITY TO PRESENT THE CASE BEFORE THEM AND WHATEVER OPPORTUNI TY WAS PROVIDED THE SAME COULD NOT BE AVAILED DUE TO THE NON-AVAILABILITY OF THE DIRECTOR ON ACCOUNT OF FAMILY PROBLEMS IN THE N ATIVE VILLAGE. IT WAS FURTHER SUBMITTED THAT AO HAS GIVEN WRONG FINDI NG BASED ON NO MATERIAL THAT ASSESSEE HAS GIVEN WRONG DATA RELATIN G TO BANK ACCOUNT IN THE RETURN OF INCOME WHEREAS THE BANK ACCOUNT D ETAILS GIVEN IN THE RETURN OF INCOME ARE CORRECT AND AO HAS MADE IN QUIRY FROM THE WRONG BANK TO GIVE THE ABOVE ADVERSE FINDING WHICH IS THE BASIS FOR MAKING ADDITION UNDER APPEAL. IN VIEW OF ABOVE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH 4 ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT BOTH THE LOWER AUTHORITIES HAVE PASSED THE EXPARTE ORDERS, W HICH IN OUR OPINION IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE AND IT IS AN ERRONEOUS APPROACH. WE ARE ALSO OF THE VIEW THAT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEF ORE THE LOWER AUTHORITIES. WE FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORDERS OF TH E AUTHORITIES BELOW HAVE BEEN PASSED WITHOUT PROVIDING REASONABLE OPPOR TUNITY TO PRESENT THE CASE BEFORE THEM AND WHATEVER OPPORTUNI TY WAS PROVIDED THE SAME COULD NOT BE AVAILED DUE TO THE NON-AVAILABILITY OF THE DIRECTOR ON ACCOUNT OF FAMILY PROBLEMS IN THE N ATIVE VILLAGE, HENCE, IN OUR OPINION, THE ISSUES IN DISPUTE NEEDS TO BE ADJUDICATED BY THE AO AFRESH, KEEPING IN MIND THE AFORESAID CO NTENTION OF THE LD. COUNSEL FOR THE ASSESSEE AND GIVE ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 5.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND IN THE INTEREST OF JUSTICE, WE REMIT BACK THE ISSUES IN DI SPUTE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH, AF TER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS A 5 SPEAKING ORDER, AFTER CONSIDERING EACH AND EVERY AS PECT OF THE ISSUE IN DISPUTE AND ALSO CONSIDER THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE AS WELL AS THE DOCUMENTS/ EVIDENCES, IF AN Y. THE ASSESSEE IS ALSO DIRECTED THROUGH HIS COUNSEL TO APPEAR BEFO RE THE ASSESSING OFFICER ON 22.07.2019 AT 10.00 AM FOR HEARING AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FILE THE NECESSARY DOCUMENTS/EVIDENCE BEFORE THE AO TO SUBSTANTIATE IT S CASE. SINCE THE DATE OF HEARING BEFORE THE AO HAS ALREADY BEEN INFORMED, THERE IS NO NEED TO SEND THE NOTICE TO THE ASSESSEE. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :10-05-2019 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.