ACIT, New Delhi V. M/s. K.P. Pan Flavours Pvt. Ltd., Uttar Pradesh

ITA 3934/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9585 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 05-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 153A; 208

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3934/DEL./2016 (ASSESSMENT YEAR : 2004-05) ACIT, CENTRAL CIRCLE 17, VS. M/S. K.P. PAN FLAVOUR S PVT. LTD., NEW DELHI. 24/36, BIRAHANA ROAD, KANPUR 208 001 (U.P.) (PAN : AABCK7310B) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI J.K. MISHRA, CIT DR DATE OF HEARING : 12.09.2019 DATE OF ORDER : 01.10.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ACIT, CENTRAL CIRCLE 17, NEW DELHI (HER EINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 29.04.2016 PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS)-27, NEW DELHI QUA THE AS SESSMENT YEAR 2004-05 ON THE GROUNDS INTER ALIA THAT :- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION OF RS.2,98,46,183/ - MADE BY AO ON ACCOUNT OF GP RATIO @ 16.9% OF RS.2,98,46,183/ -ON THE AMOUNT OF RS.17,66,04,632/- (I.E. ENHANCED TURNOVER OF THE SA LES BY THE TRADE TAX AUTHORITIES OF RS.2,98,46,183/-). ITA NO.3934/DEL./2016 2 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN MENTIONING IN HER ORDER THAT THE ORDER OF COMMERCIAL TAX DEPARTMENT HAS ATTAINED FINALITY WITHOUT APPRECIATING THE FACT THAT THE TRADE TAX AUTHORITIES HAVE FILED APPEAL AGAINST THE SAID ORDE R. 3. THAT THE LD. CIT(A) HAS ERRED IN IGNORING THE FACTS AS THE TRADE TAX AUTHORITIES FILED SECOND APP EAL AGAINST THE ORDER DATED 05.03.2012. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : ORIGINAL ASSESSMENT WAS FRAMED IN THIS C ASE UNDER SECTION 153A OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE AC T) READ WITH SECTION 143 (3) OF THE ACT AT AN INCOME OF RS.3,58, 55,080/- BY MAKING ADDITION OF RS.2,98,46,183/- ON THE BASIS OF ESTIMA TED GROSS PROFIT (GP) RATE AT 16.9% ON THE ENHANCED TURNOVER OF SALES BY THE TRADE TAX AUTHORITIES AT RS.17,66,04,632/- AND ONE MORE ADDIT ION WAS MADE ON ACCOUNT OF GP RATE ON ENHANCED TURNOVER ON THE BASI S OF EXCISE DUTY OF RS.7,39,037/-. THEN LD. CIT (A) DELETED THE ADDITI ON OF RS.2,98,46,183/- VIDE ORDER DATED 26.03.2012 WHICH ORDER HAS BEEN SE T ASIDE BY THE TRIBUNAL BY ALLOWING THE APPEAL FOR STATISTICAL PUR POSES TO THE FILE OF LD. CIT (A) TO DECIDE AFRESH IN THE LIGHT OF THE OBSERV ATIONS MADE IN THE ORDER. 3. LD. CIT (A) BY PASSING THE IMPUGNED ORDER AFTER REMAND OF THE CASE BY THE TRIBUNAL DELETED THE ADDITION BY ALLOWI NG THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. ITA NO.3934/DEL./2016 3 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BARE PERUSAL OF THE OPERATIVE PART OF THE IMPUGN ED ORDER PARTICULARLY PARA NO.5 GOES TO PROVE THAT THE LD. C IT (A) HAS ENTERTAINED THE EVIDENCE OF THE ASSESSEE AT THE BACK OF THE ASS ESSING OFFICER (AO) BY TAKING ON RECORD CERTIFICATE DATED 24.03.2015 OF TRIBUNAL, COMMERCIAL TAX, KANPUR CONFIRMING THAT THE DEPARTME NT HAS NOT FILED THE REVISION AGAINST THE ORDER DATED 05.03.2012 OF FIRST APPELLATE AUTHORITY OF TRADE TAX TILL 24.03.2015, ANOTHER CER TIFICATE DATED 18.03.2016 ISSUED BY THE TRIBUNAL CONFIRMING THAT T ILL DATE NO REVISION HAS BEEN FILED AGAINST THE AFORESAID ORDER DATED 05 .03.2012 OF THE FIRST APPELLATE AUTHORITY OF TRADE TAX AND PROCEEDED TO D ELETE THE ADDITION. 7. SINCE THE IMPUGNED ORDER IS BASED UPON THE FACT THAT AS PER CERTIFICATES DATED 24.03.2015 & 18.03.2016, TILL TH AT DATES ORDER OF THE FIRST APPELLATE AUTHORITY OF TRADE TAX AND COMMERCI AL TAX HAVE NOT BEEN CHALLENGED, COPY OF ORDERS ARE ALSO NOT ON THE FILE NOR CRUX THEREOF HAS BEEN EXTRACTED IN THE IMPUGNED ORDER, THE IMPUG NED ORDER IS NOT ITA NO.3934/DEL./2016 4 SUSTAINABLE HAVING BEEN PASSED IN VIOLATION OF RULE OF NATURAL JUSTICE AS OPPORTUNITY OF BEING HEARD IS NOT GIVE TO THE AO TO VERIFY THE DOCUMENTS RELIED UPON BY THE ASSESSEE. EVEN OTHERWISE, ADDIT ION CANNOT BE DELETED MERELY ON THE CERTIFICATE THAT TILL SUCH AND SUCH D ATE ORDER OF TRIBUNAL HAS NOT BEEN FURTHER CHALLENGED, UNLESS THERE IS CA TEGORIC DECISION TAKEN BY THE TRADE TAX AUTHORITIES NOT TO CHALLENGE ORDER PASSED BY THE TRIBUNAL. IN THESE CIRCUMSTANCES, WE ARE OF THE CO NSIDERED VIEW THAT THE CASE IS REQUIRED TO BE REMANDED BACK TO THE AO TO D ECIDE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 1 ST DAY OF OCTOBER, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 1 ST DAY OF OCTOBER, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-27, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.