M/s. Dream Team Services, Bhubaneswar V. ITO, Ward-5(4), Bhubaneswar

ITA 385/CTK/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5627 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 05-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: S K JENA
• Keywords: Principle of natural justice

Judgement Text

1 ITA NO.385/CTK/2017 ASSESSMENT YEAR : 2013 - 2014 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 385 /CTK/201 7 ASSESSMENT YEAR : 201 3 - 2014 M/S. DREAM TEAM SERVICES, AT:PLOT NO.N5/538, 2 ND FLOOR, SBI BUILDING, IRC VILLAGE, NAYAPALLI, BHUBANESWAR. VS. ITO, WARD 5(4), BHUBANESWAR PAN/GIR NO. AAHFD 2165 N (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.K.JENA, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 1 7 / 0 5 / 201 8 DATE OF PRONOUNCEMENT : 17 / 0 5 / 201 8 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 2, BHUBANESWAR DATED 16.6.2017 FOR THE ASSESSMENT YEAR 2013 - 14. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT THE IMPUGNED ORDER OF ASSESSMENT PASSED BY THE LD. A.O U/S.143(3) OF THE ACT, AND THE SOLE DISALLOWANCE OF INTEREST ON PARTNER'S CAPITAL AMOUNTING TO RS.19,67,876/ - IS INCO RRECT APPLICATION OF LAW BY THE LD. A.O, AS SUCH ALLOWABLE AS A DEDUCTION TO THE APPELLANT. FURTHER IN THE SUBSEQUENT YEARS THE LD. A.O HAS TAKEN A DIFFERENT VIEW IN ALLOWING THE SAME, HENCE THE IMPUGNED ASSESSMENT ORDER SUFFERS FROM LACK OF CONSISTENCY TH EREFORE LEGALLY IMPERMISSIBLE. 2. FOR THAT THE LD. CIT (A) WHILE DECIDING THE APPEAL HAS DISMISSED THE APPEAL AND CONFIRMED SUCH ADDITION FOR ONE NON - 2 ITA NO.385/CTK/2017 ASSESSMENT YEAR : 2013 - 2014 COMP L IANCE BY THE APPELLANT, WITHOUT EVEN VERIFY THE FACTS AND DOCUMENTS AVAILABLE ON RECORDS. THEREFORE UNDER SUCH CIRCUMSTANCES THE ORDERS IN THE FORUM BELOW IS LIABLE TO BE SET ASIDE. 3. FOR THAT IN THE PRESENT CASE BOTH THE LD. A.O AS WELL AS LD. CIT(A) HAVE NOT EXAMINE THE DOCUMENTARY EVIDENCES PRESENTED BY THE APPELLANT AND WITHOUT PROVIDI NG PROPER OPPORTUNITY THE IMPUGNED ORDERS HAVE BEEN PASSED BY THE AUTHORITIES BELOW, THEREFORE THE ORDERS SUFFER FROM NON APPLICATION OF MIND AND VIOLATES RULES OF NATURAL JUSTICE, HENCE IMPERMISSIBLE UNDER LAW. 4. FOR THAT THE APPELLANT CRAVES LEAVE TO URGE ANY OTHER GROUNDS OF APPEAL AND TO FILE WRITTEN SUBMISSION ALONG WITH THE RELEVANT DOCUMENTS, IF SO ARISES AT THE TIME OF HEARING OF THIS APPEAL. 3. AT THE OUTSET, LD A.R. SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AS THE A SSESSEE FAILED TO PUT IN APPEARANCE ON THE DATES FIXED FOR HEARING ON 19.12.2016, 10.1.2017 AND 17.5.2017 AND HENCE, PRAYED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) F OR ADJUDICATING THE APPEAL OF THE ASSESSEE AFRESH. 4. ON A QUERY FROM THE BENCH AS TO WHY THE ASSESSEE FAILED TO PUT IN APPEARANCE BEFORE THE CIT(A) ON THE DATES FIXED FOR HEARING, LD A.R. ONLY SUBMITTED THAT HE WAS NOT THE COUNSEL BEFORE THE CIT(A). HE COULD NOT GIVE ANY VALID REASON FOR FAILURE ON THE PART OF THE AS SESSEE TO APPEAR BEFORE THE CIT(A). 5. IN HE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE MATTER NEEDS TO BE SET ASIDE TO THE FILE OF THE CIT(A) BUT WITH IMPOSITION OF COST ON THE ASSESSEE FOR HIS CONDUCT BEFORE THE CIT(A). WE, THEREFORE, DIRECT THE ASSESSEE TO DEPOSIT A COST OF RS.10,000/ - ON OR BEFORE 31. 5 .2018. THE ASSESSEE IS FURTHER DIRECTED TO FILE COPY OF THE CHALLAN OF DEPOSIT OF 3 ITA NO.385/CTK/2017 ASSESSMENT YEAR : 2013 - 2014 COST BEFORE THE CIT(A) AS AN EVIDENCE IN COMPLIANC E OF THE ORDER OF THIS TRIBUNAL AS WELL AS TO FILE COPY OF THE SAME TO THE TRIBUNAL. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 17 / 0 5 /201 8 . S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 17 / 0 5 /201 8 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : M/S. DREAM TEAM SERVICES, AT:PLOT NO.N5/538, 2 ND FLOOR, SBI BUILDING, IRC VILLAGE, NAYAPALLI, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 5(4), BHUBANESWAR 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//