M/s Tuner Recreations (P) Ltd., New Delhi V. ITO, New Delhi

ITA 3835/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69644 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 14-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R C DANDAY ACIT
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A.NO.3834/DEL/2013 & 3835/DEL/2013 ASSESSMENT YEAR : 2004-05 TUNER RECREATIONS (P) LTD., VS ITO, A-18, MAYFAIR GARDEN, WARD 16(4), AUGUST KRANTI MARG, NEW DELHI. NEW DELHI. (PAN: AABCT8709K) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VINOD GOYAL, ADV. RESPONDENT BY : SHRI R.C. DANDAY ACIT DR DATE OF HEARING: 08.10.2015 DATE OF PRONOUNCEMENT: 09.10.2015 O R D E R PER CHANDRAMOHAN GARG, J.M. THESE APPEAL BY THE ASSESSEE HAVE BEEN DIRECTED AGA INST THE SEPARATE ORDER OF THE CIT(A)-19, NEW DELHI DATED 28.3.2013 BY WHICH THE PENALTY ORDERS BOTH DATED 13.3.2012 PASSED BY THE AO U/S 27 1(1)(C) AND 271(1)(B) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) HAVE B EEN UPHELD. 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES. AT T HE VERY OUTSET OF THE ARGUMENTS, THE LD. COUNSEL OF THE ASSESSEE/APPELLAN T SUBMITTED A COPY OF THE ITAT, DELHI H BENCH FOR AY 2004-05 IN ITA NO. 205 7/DEL/2013 DATED 19.6.2015 PASSED IN QUANTUM SECOND APPEAL OF THE AS SESSEE AND SUBMITTED THAT ITA NO.3834 & 3835/DEL/2013 AY; 2004-05 2 THE IMPUGNED ADDITIONS/DISALLOWANCES, ON WHICH BOTH IMPUGNED PENALTIES WERE IMPOSED, HAVE BEEN SET ASIDE BY THE TRIBUNAL ORDER (SUPRA), HENCE, PENALTY ORDERS BECOME UNSUSTAINABLE, THEREFORE, THE SAME MA Y KINDLY BE QUASHED CONSEQUENT TO THE TRIBUNAL ORDER FOR AY 2004-05 (SU PRA). 3. LD. DR FAIRLY ACCEPTED THAT THE TRIBUNAL HAS RES TORED THE ASSESSMENT TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION AND HEN CE PENALTY ORDERS HAVE BECOME BASELESS. HOWEVER, HE POINTED OUT THAT IN F UTURE, THE AO WOULD NOT BE PREVENTED TO IMPOSE PENALTY IF REQUIRED AS PER OUTC OME OF THE REASSESSMENT PROCEEDINGS. 4. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS OF BOTH THE SIDES, WE OBSERVE THAT THE TRIBUNAL IN THE ORDER DATED 19.6.2 015 FOR AY 2004-05 (SUPRA) HAS RESTORED THE ASSESSMENT TO THE FILE OF THE AO W ITH FOLLOWING OBSERVATIONS:- 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHO RITIES ON THE ISSUE IN DISPUTE . WE HAVE ALSO PERUSED THE PAPER B OOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE CONTAINING PAGES 1 TO 115 CONTAINING WRITTEN SUBMISSIONS; PHOTOCOPY OF RETURN OF ALLOTMENT OF SHARES; PHOTOCOPY OF BANK STATEMENT 1.4.13 TO 31 .3.14; PHOTOCOPY OF LETTER FILED BEFORE AO, DATED 14.10.20 11 AND 25.10.2011; PHOTOCOPY OF ROC CERTIFICATED OF KUBERC O SALES (P) LTD. AND SPARROW MARKETING (P) LTD.; PHOTOCOPY OF R OC RETURN OF KUBERCO SALES (P) LTD. AND SPARROW MARKETING (P) LTD; PHOTOCOPY OF AUDITED BALANCE SHEET OF KUBERCO SALES (P) LTD.; ITA NO.3834 & 3835/DEL/2013 AY; 2004-05 3 PHOTOCOPY OF TAN AND PAN OF SPARROW MARKETING (P) L TD; AND PHOTOCOPY OF CASE LAWS QUOTED BY THE ASSESSEE. 7. WE HAVE ALSO PERUSED THE CONTENTION RAISED BY SM T. SUNITA JINDAL, W/O LATE SH. RAVI KIRAN JINDAL AND SMT. SWA TI JINDAL, CHARTERED ACCOUNTANT, DAUGHTER IN LAW OF LATE SHRI RAVI KIRNA JINDAL MADE IN THEIR RESPECTIVE AFFIDAVITS. THE CON TENTIONS OF BOTH THE AFFIDAVITS ARE REPRODUCED HEREUNDER:- CONTENTS OF AFFIDAVIT OF SMT. SUNITA JINDAL I SUNITA JINDAL W/O LATE SHRI RAVI KIRAN JINDAL, R /O R-2/240 RAJ NAGAR, GHAZIABAD (U.P.) DO HEREBY STATE ON OATH AS UNDER:- 1.THAT I AM DIRECTOR OF M/S TURNER RECREATION PVT. LTD. HAVING ITS REGISTERED OFFICE AT N-101B, MUNSHI LAL BUILDIN G, CONNAUGHT CIRCUS, NEW DELHI 110 001. 2.THAT IN THE ABOVE CASE MY HUSBAND LATE SHRI RAVI KIRAN JINDAL, ADVOCATE WAS LOOKING AFTER THE ENTIRE INCOME TAX MA TTERS OF THE COMPANY. 3. THAT MY HUSBAND PASSED AWAY ON 19TH FEBRUARY 201 1, THEREAFTER ALL FAMILY MEMBERS WERE DISTURBED AND SM T. SWATI JINDAL (DAUGHTER IN LAW) HAD NO EXPOSURE TO THE INC OME TAX HEARINGS SO WAS UNABLE TO ARGUE THE CASE. 4. THAT ALL THE PROCEEDINGS BEFORE THE AO WAS DONE BY KSHITIJA NARWANE ADVOCATE WHO WAS THE EXISTING EMPLOYEE OF L ATE SHRI. RAVI KIRAN JINDAL AND DURING THAT TIME SHE WAS DEAL ING IN SALES TAX MATTERS ONLY. 5. THAT MRS. KSHITIJA APPEARED BEFORE AO, BUT DUE T O LACK OF SUFFICIENT KNOWLEDGE RELATING TO INCOME TAX MATTERS SHE WAS UNABLE TO PURSUE THE PROCEEDINGS EFFICIENTLY. 6. THAT THE COMPANY WILL FEEL OBLIGED IF YOUR HONOR WILL ALLOW THE APPEAL CONSIDERING THE FACTS AND LAW QUOTED BY THE ASSESSEE. I, SUNITA JINDAL, DIRECTOR OF M/S TURNER RECREATION S PRIVATE LIMITED DO HEREBY CERTIFY THAT ALL THE INFORMATION PROVIDED ABOVE ITA NO.3834 & 3835/DEL/2013 AY; 2004-05 4 ARE TRUE TO BEST OF MY KNOWLEDGE AND BELIEF. THIS A FFIDAVIT IS MADE ON THE 17 TH DAY OF JUNE, 2015. CONTENTS OF AFFIDAVIT OF SMT. SWATI JINDAL I SWATI JINDAL (CHARTERED ACCOUNTANT) W/O SH. ABHI SHEK JINDAL (DIRECTOR M/S TURNER RECREATIONS PRIVATE LIMITED) R /O R-2/240 RAJ NAGAR, GHAZIABAD (U.P.) DO HEREBY STATE ON OATH AS UNDER: 1.THAT IN THE ABOVE CASE MY FATHER IN LAW LATE SHRI RAVI KIRAN JINDAL ADVOCATE WAS LOOKING AFTER THE ENTIRE INCOME TAX MATTERS OF THE COMPANY. 2. THAT MY FATHER IN LAW PASSED AWAY ON 19TH FEBRUA RY 2011, THEREAFTER ALL FAMILY MEMBERS WERE DISTURBED AND I HAD NO EXPOSURE TO THE INCOME TAX HEARINGS SO WAS UNABLE T O ARGUE THE CASE. 3. THAT ALL THE PROCEEDINGS BEFORE THE AO WAS DONE BY KSHITIJA NARWANE ADVOCATE WHO WAS THE EXISTING EMPLOYEE OF L ATE SHRI RAVI KIRAN JINDAL AND DURING THAT TIME SHE WAS DEAL ING IN SALES TAX MATTERS ONLY. 4. THAT MRS. KSHITIJA APPEARED BEFORE AO, BUT DUE T O LACK OF SUFFICIENT KNOWLEDGE RELATING TO INCOME TAX MATTERS SHE WAS UNABLE TO PURSUE THE PROCEEDINGS EFFICIENTLY. 5. THAT AFTER THE DEATH OF MY FATHER-IN-LAW NOW I A M DEALING WITH ALL THE INCOME TAX MATTERS. 6. THAT AT THE TIME OF ASSESSMENT BEFORE AO NO PROP ER OPPORTUNITY OF BEING HEARD IS GIVEN TO THE ASSESSEE WHICH IS AGAINST NATURAL JUSTICE. 7. THAT TO MEET JUSTICE IT IS REQUIRED TO GIVE ANOT HER OPPORTUNITY OF BEING HEARD BEFORE AO. 8. THAT THE ASSESSEE WILL FEEL OBLIGED IF THE CASE WILL SET ASIDE TO THE A.O. TO PRODUCE EVIDENCE DESIRED BY AO. SWATI JINDAL (CHARTERED ACCOUNTANT) W/O ABHISHEK JI NDAL DO HEREBY CERTIFY THAT ALL THE INFORMATION PROVIDED AB OVE ARE TRUE TO ITA NO.3834 & 3835/DEL/2013 AY; 2004-05 5 BEST OF MY KNOWLEDGE AND BELIEF. THIS AFFIDAVIT IS MADE ON THE 17 TH DAY OF JUNE, 2015. 8. NO DOUBT THE ASSESSEE REMAINED NON-COOPERATIVE B EFORE THE AO AS WELL AS LD. CIT(A), BUT AFTER THE READING OF THE AFFIDAVITS FILED BY SMT. SUNITA JINDAL, W/O LATE SHRI RAVI KIR AN JINDAL AND SMT. SWATI JINDAL, CA, DAUGHTER IN LAW OF LATE SHRI RAVI KIRAN JINDAL, , ADVOCATE IN WHICH THEY HAVE STATED THAT A FTER THE DEATH OF LATE SH. RAVI KIRAN JINDAL, ADVOCATE, THE EMPLOY EE OF LATE SH. RAVI KIRAN JINDAL, HAS NOT PROPERLY PURSUED THE MAT TER BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) AND THEY HA VE DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE IN SPITE OF THE FACT OF THE RELEVANT EVIDENCE ARE AVAILABLE WITH THE RECORD. WE ARE OF THE CONSIDERED VIEW THAT DUE TO FAILURE OF THE ASSESSEE S COUNSEL AND DUE TO UNAVOIDABLE CIRCUMSTANCES FOR NON-PRODUCING THE RELEVANT EVIDENCE AND NON-APPEARANCE BEFORE THE REVENUE AUTH ORITIES, ASSESSEE SHOULD NOT BE SUFFERED. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUE IN DISPUTE IS SET ASIDE DE NOVO TO THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD FOR SUBS TANTIATING ITS CLAIM. 5. HENCE, IN VIEW OF ABOVE, IMPUGNED PENALTY ORDERS IN BOTH THE PRESENT APPEALS DO NOT SURVIVE AND HENCE, APPEALS OF THE AS SESSEE ARE ALLOWED AND PENALTY ORDERS AND IMPUGNED ORDERS OF THE CIT(A) AR E HEREBY DISMISSED. HOWEVER, BEFORE WE PART WITH THE ORDER, WE ALSO MAK E IT CLEAR THAT THE AO WOULD NOT BE PREVENTED TO INITIATE ANY PROCEEDING U /S 271(1)(C) AND 271(1)(B) OF THE ACT, IF REQUIRED, AS PER OUTCOME OF THE REASSES SMENT PROCEEDINGS AS PER DIRECTIONS OF THE TRIBUNAL. ITA NO.3834 & 3835/DEL/2013 AY; 2004-05 6 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED ON TECHNICAL GROUNDS WITHOUT ANY DETAILED DELIBERATIONS ON MERITS ONLY T HE GROUND THAT THE QUANTUM ASSESSMENT ORDER HAS BEEN SET ASIDE AND THE SAME HA S BEEN RESTORED TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2015. SD/- SD/- (L.P. SAHU) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09TH OCTOBER, 2015 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR