M/s. New Kisan Dairy, Bulandshahr V. ITO, Bulandshahr

ITA 3536/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0449 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 03-02-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 22-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F DELHI) BEFORE SHRI A.D. JAIN AND SHRI K.D. RANJAN ITA NO. 3536(DEL)2010 ASSESSMENT YEAR: 2006-07 M/S. NEW KISAN DAIRY, INCO ME TAX OFFICER-3, SIYANA ROAD DISTT. BULANDSHAHR. V. AAYKAR BHAW AN, U.P. BULANDSHAHR,U.P. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY: SHRI H.K. LAL, SR. DR ORDER PER A.D. JAIN, J.M . THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 006-07. THE EFFECTIVE GROUNDS RAISED BY THE ASSESSEE ARE AS UND ER:- 1(A) BECAUSE, ON A DUE CONSIDERATION OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. AO WAS HIGHLY UNJ USTIFIED IN PASSING ASSESSMENT ORDER EX-PARTE IGNORING THE REQUEST OF T HE COUNSEL FOR GRANT OF FURTHER TIME IN ORDER TO MAKE COMPLIANCE I N THE CASE. 2. BECAUSE, ON DUE CONSIDERATION OF FACTS, CIRCUMS TANCES AND IN ANY VIEW OF THE MATTER AFTER HAVING REJECTED THE BOOKS OF ACCOUNT OF THE APPELLANT UNDER SECTION 145(3) OF THE INCOME TAX AC T THE LD. AO, ITA 3536(DEL)10 2 INSTEAD OF MAKING SEPARATE ADDITIONS RELYING ON SUC H REJECTED BOOKS OF ACCOUNT, IN FAIRNESS OF THE MATTER OUGHT TO HAVE AP PLIED FLAT RATE OF PROFIT BASED ON PAST HISTORY OF THE ASSESSEE AND CO MPARABLE CASES. 3. BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE AUTHORITIES BELOW WERE HIGHLY UNJUSTIFIED IN MAKING AND THEREAFTER CONFIRMING THE DISALLOWANCE RELATING TO INTEREST AN D REMUNERATION PAID TO PARTNERS EVEN AFTER HOLDING THAT THE APPELL ANT FIRM OUGHT TO HAVE BEEN ASSESSED HAS FIRM AND NOT AS AN AOP A S ASSESSED BY THE LD. AO. 4(A) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE AUTHORITIES BELOW WERE HIGHLY UNJUSTIFIED IN MAKING AND CONFIRMING ADDITION OF ` 23,50,000/- BEING THE CAPITAL CONTRIBUTION MADE BY TWENTY PARTNERS OF THE APPELLANT FIRM, BY ALLEGING IT TO BE THE INCOME OF THE APPELLANT FROM UNDISCLOSED SOURCES. 5(A) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW WERE HIGHLY UNJUSTIFIED IN MAKING ADDITION OF THE ENTIRE AMOUNT APPEARING IN THE CREDIT OF SUNDRY CR EDITORS AMOUNTING TO ` 56,65,419/- IN THE AUDITED BALANCE SHEET EVEN AFTE R ACCEPTING THE GENUINENESS OF PURCHASES MADE FROM SUCH SUNDRY CRE DITORS. 6(A) BECAUSE, IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW WERE HIGHLY UNJUSTIFIED IN MAKING ADHOC DISALLOWANCE OF ` 15,17,058/- UNDER VARIOUS HEAD OF EXPENSES AS CLAIMED VIDE THE AUDITED ACCOUNTS. 2. AS PER GROUND NO. 1(A), THE AO WAS NOT JUSTIFIED IN PASSING THE ASSESSMENT ORDER EX-PARTE QUA THE ASSESSEE, IGNORIN G THE REQUEST FOR GRANT OF FURTHER TIME. ITA 3536(DEL)10 3 3. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT NUM EROUS OPPORTUNITIES WERE GRANTED TO THE ASSESSEE BY THE AO FOR COMPLIAN CE AND IT WAS ONLY WHEN EVEN THEREAFTER AN ADJOURNMENT WAS SOUGHT, THE MATT ER WAS PRECEDED WITH EX-PARTE. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT ALL THE DETAILS COULD NOT BE GATHERED IN TIME AND IT WA S, THEREFORE, THAT THE REQUEST FOR ADJOURNMENT WAS MADE BEFORE THE AO. A N APPLICATION HAS BEEN FILED. IT HAS BEEN SIGNED BY THE LEARNED COUNSEL F OR THE ASSESSEE AS WELL AS SHRI SURESH CHAND, PARTNER OF THE ASSESSEE, M/S. NE W KISAN DAIRY. IN THIS APPLICATION, REQUEST HAS BEEN MADE TO SET ASIDE THE MATTER TO THE FILE OF THE AO FOR AFFORDING ONE LAST OPPORTUNITY OF HEARING TO THE ASSESSEE. FULL COMPLIANCE HAS BEEN ASSURED. 5. IN THE INTEREST OF JUSTICE, THEREFORE, WE REMIT THIS MATTER TO THE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW ON HEARING THE ASSESSEE AND ON CONSIDERING THE EVIDENCE TO BE PRODUCED BY T HE ASSESSEE. THE ASSESSEE SHALL PRESENT ITSELF BEFORE THE AO AND SHA LL CO-OPERATE IN THE ASSESSMENT PROCEEDINGS WITHOUT DELAY. 6. SINCE THE MATTER IS BEING REMITTED TO THE FILE O F THE AO, THE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOT BEING GONE I NTO AT THIS STAGE. ITA 3536(DEL)10 4 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.02.2011. SD/- SD/- (K.D. RANJAN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.02.2011 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR