Shri Purshottam B.Mistry, Ahmedabad V. The Dy.CIT, Circle -12, Ahmedabad

ITA 3499/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80320 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-08-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 31-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA SR DR
• Assessee Lawyers: S N DIVETIA
• Keywords: Depreciation; Principle of natural justice; Condonation of delay

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.3499 AND 3500 /AHD/2010 [ASSTT.YEAR : 1996-1997 AND 1998-1999] SHRI PURSHOTTAM B. MISTRY PROP. J.P. FABRICATORS OPP: AMBALAL ESTATE, N.H. NO.8 GHODASAR, AHMEDABAD. PAN : ABWPM 6274 B /VS. DCIT, CIR.12 AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI S.N. DIVETIA + 2 3 )/ REVENUE BY : SHRI B. KULSHRESTHA, SR.DR 5 2 &(*/ DATE OF HEARING : 26 TH AUGUST, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 05/09/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE TWO APPEALS BY THE ASSESSEE FOR THE ASST.YEAR 1996-97 AND 1998-99 ARE DIRECTED AGAINST THE ORDERS OF THE CIT(A). THESE ARE BEING DISPOSED O F WITH THIS CONSOLIDATED ORDER. 2. THERE IS A DELAY OF 21 DAYS IN FILING THE APPEAL S BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED APPLICATIONS FOR CONDONATION OF DELAY IN FILING THE ITA NO.3499 AND 3500/AHD/2010 -2- APPEALS. WE HAVE HEARD PARTIES ON THIS ISSUE. IN THE FACTS OF THE CASE AND IN VIEW OF THE CIRCUMSTANCES EXPLAINED FOR THE DELA Y, WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONATION OF DELAY OF 2 1 DAYS IN FILING THE PRESENT APPEALS BEFORE THE TRIBUNAL, AND WE CONDONE THE DEL AY ACCORDINGLY. 3. THE GROUNDS OF THE APPEAL OF THE ASSESSEE FOR TH E ASSTT.YEAR 1996-97 ARE AS UNDER: 1.1 THE ORDER PASSED U/S.250 ON 9.9.2010 FOR A.Y.1 996-97 BY CIT(A)-XX, DISPOSING OFF THE APPEAL AGAINST ORDER U /S.143(3) R.W.S. 254 DATED 16.12.2008 IS WHOLLY ILLEGAL, UNLAWFUL AN D AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN PASSING IMPUGNED ORDER WITHOUT CONSIDERING FULLY AND PROPERLY THE EVIDENCE ALREADY ON HIS RECORD WITH REGARDS TO THE ISSUES SET ASIDE BY ITAT . THE LD.CIT(A) HAS FAILED TO CARRY OUT THE DIRECTIONS GIVEN BY THE ITAT AND DISMISSED THE APPEAL IN TOTAL DISREGARD TO THE SAID DIRECTIONS. 1.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN HOLDING T HAT GROUND NO.1.3 WAS GENERAL IN NATURE AND NO SEPARATE ORDER WAS REQUIRED, THOUGH THE SAID GROUND PERTAIN TO THE FAILURE ON TH E PART OF AO TO ALLOW SUFFICIENT OPPORTUNITY TO THE APPELLANT. 2.1 THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN CONFIRMING FOLLOWING ADDITIONS/DISALLOWANCES: A) DEPRECIATION ON VEHICLES AND MACHINERY TAKEN ON HIGHER PURCHASE RS.83,99,564/ B) EXCESS DEPRECIATION RS.16,25,510/- C) PAYMENT TO PANCHAL FABRICATORS RS.1,49,181/- 2.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ABOVE SA ID ADDITIONS/ DISALLOWANCES. 3.1 THE LD.CIT(A) HAS ERRED IN PASSING A CRYPTIC OR DER WITHOUT ANY DISCUSSION AND IGNORING THE MATERIAL ON RECORD. TH E CIT(A) HAS GRIEVOUSLY ERRED NOT CONSIDERING FULLY AND PROPERLY THE GROUND ELATING TO IMPUGNED ADDITIONS/DISALLOWANCES AS STAT ED HEREINABOVE. ITA NO.3499 AND 3500/AHD/2010 -3- 3.2 THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE APP ELLANT HAD FAILED TO PRODUCE EVIDENCE AND DOCUMENTS FOR VERIFI CATION OF THE CLAIM. THE LD.CIT(A) HAS CALLED FOR THE ORDER OF A SSESSMENT PASSED U/S.143(3) FOR ANY EARLIER YEAR TO A.Y.1996-97 WHIC H THE APPELLANT WAS NOT IN POSITION TO FURNISH ON ACCOUNT OF UNAVAI LABILITY OF SUCH OLD RECORD AND PASSAGE OF TIME (THOUGH THE SAME WAS NOT RELEVANT FOR THE PURPOSE OF THIS APPEAL). THE GROUNDS OF THE APPEAL OF THE ASSESSEE FOR THE ASSTT.YEAR 1998-99 ARE AS UNDER: 1.1 THE ORDER PASSED U/S.250 ON 9.9.2010 FOR A.Y.1 996-97 BY CIT(A)-XX, DISPOSING OFF THE APPEAL AGAINST ORDER U /S.143(3) R.W.S. 254 DATED 16.12.2008 IS WHOLLY ILLEGAL, UNLAWFUL AN D AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN PASSING IMPUGNED ORDER WITHOUT CONSIDERING FULLY AND PROPERLY THE EVIDENCE ALREADY ON HIS RECORD WITH REGARDS TO THE ISSUES SET ASIDE BY ITAT . THE LD.CIT(A) HAS FAILED TO CARRY OUT THE DIRECTIONS GIVEN BY THE ITAT AND DISMISSED THE APPEAL IN TOTAL DISREGARD TO THE SAID DIRECTIONS. 1.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN HOLDING T HAT GROUND NO.1.3 WAS GENERAL IN NATURE AND NO SEPARATE ORDER WAS REQUIRED, THOUGH THE SAID GROUND PERTAIN TO THE FAILURE ON TH E PART OF AO TO ALLOW SUFFICIENT OPPORTUNITY TO THE APPELLANT. 2.1 THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN CONFIRMING ADDITION OF RS.6,15,065/- IN RESPECT OF DURGA RAICO L INDUSTRIES LTD., THOUGH IT WAS NOT THE ISSUE FOR THE YEAR UNDER APPE AL. 2.2 THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF INTEREST OF RS.4,50,000/- AND RS.3,60,257/-. 2.3 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ABOVE SA ID ADDITIONS/ DISALLOWANCES. 3.1 THE LD.CIT(A) HAS ERRED IN ALLOWING SET OFF OF C/F LOSS OF RS.1,73,24,556/- OF A.Y.1995-96 WITHOUT VERIFYING T HE LATEST FACTUAL ITA NO.3499 AND 3500/AHD/2010 -4- POSITION. THE APPELLANT IS IN APPEAL AGAINST FRESH ASSTT. FOR AY: 1996-97 SO THAT ANY UNABSORBED BUSINESS LOSS OR DEP RECIATION OF EARLIER YEAR SHOULD BE PREDETERMINED AND ALLOWED SE T OFF OR C/F. 3.2 THE LD.CIT(A) HAS ERRED IN PASSING A CRYPTIC OR DER WITHOUT ANY DISCUSSION AND IGNORING THE MATERIAL ON RECORD. TH E LD.AO HAS ENHANCED THE DISALLOWANCE FROM RS73,75,053/- TO RS. 83,99,564/- THOUGH IT WAS NOT SUBJECT MATTER OF APPEAL AND EVEN NO OPPORTUNITY WAS ALLOWED. 3.3 THE LD.CIT(A) HAS ERRED IN PASSING A CRYPTIC OR DER WITHOUT ANY DISCUSSION AND IGNORING THE MATERIAL ON RECORD. TH E CIT(A) HAS GRIEVOUSLY ERRED NOT CONSIDERING FULLY AND PROPERLY THE GROUND ELATING TO IMPUGNED ADDITIONS/DISALLOWANCES AS STAT ED HEREINABOVE. 3.2 THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE APP ELLANT HAD FAILED TO PRODUCE EVIDENCE AND DOCUMENTS FOR VERIFI CATION OF THE CLAIM. THE LD.CIT(A) HAS CALLED FOR THE ORDER OF A SSESSMENT PASSED U/S.143(3) FOR ANY EARLIER YEAR TO A.Y.1996-97 WHIC H THE APPELLANT WAS NOT IN POSITION TO FURNISH ON ACCOUNT OF UNAVAI LABILITY OF SUCH OLD RECORD AND PASSAGE OF TIME (THOUGH THE SAME WAS NOT RELEVANT FOR THE PURPOSE OF THIS APPEAL). 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS IN SECOND ROUND OF LITIGATION BEFORE THE TRIBUNAL. IN THE FIRST ROUND ITAT, AHMEDABAD BENCH HAS RESTORED THE ISSUES IN THESE AP PEALS TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW . HOWEVER, THE AO HAS NOT ALLOWED ANY REASONABLE OPPORTUNITY TO THE A SSESSE TO PLEAD ITS CASE, AND THE DIRECTIONS GIVEN BY THE TRIBUNAL WERE NOT C OMPLIED WITH BY THE CIT(A), AND THE APPEALS OF THE ASSESSEE WAS DISMISS ED IN TOTAL DISREGARD TO THE SAID DIRECTIONS OF THE TRIBUNAL. THE LEARNED D R HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE. HE SUBMITTED THAT THE PROPER OPPORTUNITY WAS GIVEN BOTH BY THE AO AND THE CIT(A) AND FAILURE WAS ON THE PART OF THE ASSESSEE IN NOT COMPLYING WI TH THE DIRECTION OF THE TRIBUNAL. HE RELIED ON THE ORDERS OF THE AO AND TH E CIT(A). ITA NO.3499 AND 3500/AHD/2010 -5- 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND ALSO THE ORDER OF THE TRIBUN AL IN ASSESSEES OWN CASE IN ITA NO.1369/AHD/2001 AND ITA NO.2107/AHD/20 00 FOR A.YS. 1998-88 AND 1996-97 ORDER DATED 31-1-2005. WE FIND THAT THE MAIN ISSUES OF THE DISPUTE IN THESE APPEALS OF THE ASSESSEE ARE WITH REGARD TO THE DEPRECIATION ON VEHICLES AND MACHINERY TAKEN ON HIR E PURCHASE AND EXCESS DEPRECIATION CLAIMED BY THE ASSESSEE. RELEVANT REC ORD IS ALREADY WITH THE DEPARTMENT AND THE REVENUE AUTHORITIES SHOULD HAVE VERIFIED FROM THERE OWN RECORD. THE ASSESSEE HAS EQUAL LIABILITY TO CO OPERATE WITH THE DEPARTMENT AND SHOULD HAVE BEEN MORE CAREFUL IN PLE ADING ITS CASE AND FILING EVIDENCE IN SUPPORT OF ITS CASE BEFORE THE A UTHORITIES. IN THE FACTS OF CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE BEFORE US TO THE FI LE OF THE CIT(A) WITH DIRECTION TO PASS DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES AND COMPLY WITH THE DIRECTIONS OF THE TRIBUNAL CONTAINED IN TH E ORDER OF THE TRIBUNAL DATED 31.1.2005. THE ASSESSEE IS DIRECTED TO OBTAI N NOTICE OF HEARING FROM THE OFFICE OF THE CIT(A) ON ITS OWN WITHIN A PERIOD OF TWO MONTHS FROM THE RECEIPT OF THIS ORDER OF THE TRIBUNAL. WE DIRECT A CCORDINGLY. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT