Charan Safe Works Pvt. Ltd., Kanpur V. Asstt. Commissioner of Income Tax-5, Kanpur

ITA 371/LKW/2014

• Counselvise Citation: 37123714 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R K TRIVEDI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.371/LKW/2014 ASSESSMENT YEAR:2005-06 CHARAN SAFE WORKS PVT. LTD. KANPUR V. ACIT-V KANPUR TAN/PAN:AAACC7145B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. R. K. TRIVEDI, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 25 08 2015 DATE OF PRONOUNCEMENT: 28 08 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THAT THE LD. AO HAD MADE THE FOLLOWING ADDITIONS WHICH ARE NARRATED AS UNDER:- A) ENHANCEMENT OF GROSS PROFIT 135710.00 B) COMMISSION AND BROKERAGE 149044.00 C) VEHICLE MAINTENANCE 141647.00 D) TELEPHONE [phone] E) MISC. EXPS. 15000.00 F) LEGAL EXPS. 15000.00 THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE NECESSARY COMPLIANCE AND EVIDENCES WERE FILED, THE LD AO HAD WITHOUT ANY REASON HAD MADE THE DISALLOWANCE AND ENHANCE THE GROSS PROFIT :- 2 -: RATE HOWEVER THE GROSS PROFIT DISCLOSED HAD BEEN INCREASED AS COMPARE TO, LAST YEAR. THE DETAILS HAD BEEN FILED DURING THE ASSESSMENT PROCEEDINGS. THAT THE LD AO HAD MADE AN ADDITION OF RS. 149044.00 ON ACCOUNT OF COMMISSION AND BROKERAGE GIVEN TO THE PERSON WHO HAD WORKED FOR OBTAINING OF ORDER AND OTHER RELATED MATTERS ALL THE PAYMENT WERE MADE ONLY THROUGH ACCOUNT PAYEE CHEQUE AND PERSON TO WHOM THE BROKERAGE IS MADE ARE INCOME TAX ASSESSEE. THIS CERTIFICATE FOR CONFIRMATION OF PAYMENT HAD ALSO BEEN FILED BUT THE LD AO WITHOUT LOOKING THE FACTS HAD DISALLOWED THE COMMISSION OF RS. 149044.00. THAT LD AO HAD MADE A DISALLOWANCE OF RS. 141647.00 ON ACCOUNT OF VEHICLE MAINTENANCE, ON ACCOUNT OF TELEPHONE RS. 14802.00 OUT OF MISC. EXPS. RS.15000.00 AND OUT OF LEGAL EXPS. 15000.00 ALL THE ABOVE ADDITIONS ARE MADE HAD NO VALID COST HOWEVER THE APPELLANT HAD REPLIED WITH EVIDENCES ABOUT THE GENUINE NESS BUT THE SAME HAD NOT BEEN ACCEPTED WITHOUT ANY REASON. THE ADDITIONS MADE ON THE SCORE IS ALSO MADE ON CONJECTURE AND SURMISES AND BAD IN LAW AS ALL THE ADDITIONS ARE MADE BY THE AO WHICH IS AGAINST THE JUSTICE EQUITY AND GOOD CONCISE. 2. THAT LD CIT APPEAL HAD NOT APPRECIATED THE FACTS AND WITHOUT ANY REASON AND SIMPLY ON THE BASIS THAT THE ASSESSEE WAS NOT PRESENTED ON THE DATE FIXED, HOWEVER NO INTIMATION REGARDING FIXING THE DATE WAS KNOWN TO THE ASSESSEE SO IT WAS NOT POSSIBLE TO CONDUCT THE HEARING BEFORE THE COMMISSIONER OF INCOME TAX APPEAL. THE LD CIT APPEAL HAD WITHOUT GOING INTO THE FACTS HAD DISMISSED THE APPEAL WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 3. THAT NO COMMENTS OF MERIT OF CASE WHICH HAD BEEN DESCRIBED IN GROUNDS OF APPEAL HAD NOT BEEN CONSIDERED BY LD. CIT APPEAL. THAT THE CIT APPEAL HAD DISMISSED THE APPEAL ONLY ON :- 3 -: THE BASIS THAT THE ASSESSEE WAS NOT APPEARED BEFORE HIM. HOWEVER, THE DETAILED EVIDENCES HAVE BEEN FILED BEFORE THE AO AND WHICH HAD BEEN DESCRIBED IN THE BODY OF ORDER. THE ASSESSEE IS A COMPANY AND WELL COOPERATIVE WITH THE DEPTT. DUE TO NON RECEIVING OF ANY INTIMATION REGARDING FIXING OF APPEAL THE COUNSEL OR AUTHORIZED REPRESENTATIVE COULD NOT APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEAL. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT NO NOTICE OF HEARING WAS RECEIVED FROM THE OFFICE OF THE LD. CIT(A) AND THE LD. CIT(A) HAS FINALLY DECIDED THE APPEAL EX-PARTE AGAINST THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIM FOR ADJUDICATION OF THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), WE FIND THAT THERE IS NO SPECIFIC FINDING OF THE LD. CIT(A) WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE LD. CIT(A) IN PARAGRAPH 2 OF HIS ORDER MENTIONED THAT NOTICE DATED 17.10.2013 AND 6.1.2014 UNDER SECTION 250 OF THE INCOME-TAX ACT, 1961 ARE ISSUED FOR ASSESSEES COMPLIANCE ON 29.10.2013 AND 10.1.2014 RESPECTIVELY, BUT WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE, NOTHING HAS BEEN MENTIONED IN THE ORDER OF THE LD. CIT(A). THEREFORE, IT APPEARS THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT GETTING THE NOTICE SERVED UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO HIS FILE FOR RE-ADJUDICATION OF THE APPEAL. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE :- 4 -: THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH AUGUST, 2015 JJ:2508 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR