M/s. Shiv Milk Products, Meerut V. ITO, Meerut

ITA 3984/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4286 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 15-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Assessee Lawyers: VINOD GOEL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 3984/DEL/2015 ASSESSMENT YEAR: 2010-11 M/S SHIV MILK PRODUCTS, VS. INCOME TAX OFFICER, C/O VINOD KUMAR GOEL, WARD 2(3), 282, BOUNDARY ROAD, CIVIL LINES, MEERUT MEERUT (PAN: AAWFS2098A) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. VINOD GOEL, ADV. REVENUE BY : SH. UMESH CHAND DUBEY, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 19.11.2014 PASSED BY THE LD. CIT(A), MEERUT RELATI NG TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT CIT(A) HAS NOT CONSIDERED THE FACT THAT THE BUSINESS OF THE ASSESSEE WAS CLOSED DUE TO THE SEAL IMPOSED BY SYNDICATE BANK, MEERUT CANTT. THAT THE EARLIER COUN SEL HAS NOT INFORM THE DATE OF HEARING ON 18-11-2011, H ENCE ORDER PASSED BY CIT(A), MEERUT CONFIRMING THE ORDER IS BAD IN LAW. 2 2. THAT NO NOTICE U/S 143(2) WAS SERVED UPON THE AS SESSEE. HENCE, ENTIRE ASSESSMENT U/S 143(3) IS BAD IN LAW A ND CIT(A) IS IN ERROR IN CONFIRMING THE SAME. 3. THAT A.O. HAS NOT JUSTIFIED ESTIMATED NET PROFIT OF THE FIRM OF RS. 69,97,667/- @ 5% OF THE GROSS TURNOVER. THE A.O. HAS NOT GIVEN ANY COMPARATIVE CASE AND CIT(A) HAS N OT GIVEN ANY FINDING ON MERIT. 4. THAT A.O. HAS NOT JUSTIFIED IN MAKING ADDITION O F RS. 23,27,697/- AS CAPITAL INTRODUCED BY THE PARTNER'S AND CIT(A) HAS NOT GIVEN ANY FINDING ON MERIT. 5. THAT A.O. HAS NOT JUSTIFIED IN MAKING ADDITION O F RS. 1,09,489/- U/S 43B OF I.T. ACT, 1961 AND CIT(A) HA S NOT GIVEN ANY FINDING ON MERIT. 6. THAT A.O. HAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 5,58,600/- ON ACCOUNT OF INTEREST ON ADVANCES @ 12 % AN CIT(A) HAS NOT GIVEN ANY FINDING ON MERIT. 7. THAT A.O. HAS NOT JUSTIFIED IN MAKING ADDITION O F RS. 1,73,307/- ON ACCOUNT OF ADVANCES TO DEVENDRA SINGH AL, J.K GUPTA AND SHASHI KIRAN @ 12% AND CIT(A) HAS NOT GIVEN ANY FINDING ON MERIT. 3 8. THAT A.O. HAS NOT JUSTIFIED IN MAKING ADDITION O F RS. 4,00,000/- U/S 68 AS UNSECURED LOAN AND CIT(A) HAS NO GIVEN ANY FINDING ON MERIT. 9. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MO DIFY ANY GROUNDS DURING THE APPEAL PROCEEDING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT NO NOTICE U/S. 143(2) WAS SERVED UPON THE ASSESSEE. HE FURTHER ST ATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY, HENCE, THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT (A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HEARD. HE HIMSELF MADE A STATEMENT THAT HE WILL APP EAR BEFORE THE LD. CIT(A), AS AND WHEN THE BENCH DIRECTED TO DO SO. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE A UTHORITIES ESPECIALLY THE IMPUGNED ORDER AND WE FIND THAT L D. CIT(A) HAS ISSUED THE NOTICE TO THE ASSESSEE, BUT THE ASSESSEE DID NO T ATTEND THE 4 PROCEEDINGS. FOR READY REFERENCE, WE ARE REPRODUCI NG THE RELEVANT PARA NO. 2 TO 4 OF THE IMPUGNED ORDER AS UNDER:- 2. THIS IS A HIGH DEMAND APPEAL. IT IS OBSERVED FR OM A STUDY OF THE ASSESSMENT ORDER THAT THE SAME WAS PASSED U/S. 143(3) OF I.T. ACT, 1961. IT IS ALSO OBSERVED THAT THE ASSESSEE FAILED TO APPEAR ON MANY OCCASIONS IN RESPONSE TO NOTICES ISSUED BY THE AO. DURING THE APPELLATE PROCEEDINGS, COMPLIANCE WAS FIXED ON 25.09.2014 IN TERMS OF NOTICE U/S. 250 DAT ED 26.8.2014. ON THIS DATE, THE AR OF THE APPELLANT FI LED AN ADJOURNMENT APPLICATION STATING THEREIN THAT HE IS NOT IN A POSITION TO ATTEND THE HEARING ON 25.9.201 4. THE CASE WAS ADJOURNED FOR 18.11.2014. ON THIS DATE , NO COMPLIANCE WAS MADE NOR WAS ANY WRITTEN COMMUNICATION RECEIVED FROM THE APPELLANT. 3. FROM THE ABOVE, IT IS EVIDENT THAT SUFFICIENT OPPORTUNITIES OF BEING HEARD HAVE BEEN ALLOWED TO THE APPELLANT. THIS ALSO IMPLIES THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL FOR THE REASONS B EST KNOWN TO HIM. SINCE SUFFICIENT OPPORTUNITIES OF BEI NG HEARD HAVE BEEN GIVEN TO THE APPELLANT, NO FURTHER ADJOURNMENT CAN BE GRANTED. THEREFORE, THE APPEAL I S DISPOSED OFF ON THE BASIS OF MATERIAL ON RECORD. 5 4. SINCE THE APPELLANT HAS NOT FURNISHED ANY WRITTE N EXPLANATION AND / OR DETAIL AGAINST THE ADDITIONS M ADE BY THE AO IN HIS ORDER U/S. 143(3), IT IS HELD THA T THE AO WAS JUSTIFIED IN MAKING THE ADDITIONS. THE SAME ARE HEREBY CONFIRMED. GROUNDS OF APPEAL ARE DISMISSED. 5. IN THE RESULT, THE APPEAL IS DISMISSED. 6. KEEPING IN VIEW OF ABOVE FACTS AND CIRCUMSTANCE S, WE ARE OF THE VIEW THAT SUFFICIENT OPPORTUNITY HAS NOT BEEN GIVEN BY THE LD. FIRST APPELLATE AUTHORITY TO THE ASSESSEE FOR SUBSTANTIAT ING ITS CLAIM BEFORE THE LD. CIT(A) WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. I ALSO NOTE THA T ON MERIT ALSO LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER ON THE ISSU ES IN DISPUTE, HENCE, WE ARE OF THE VIEW THAT IN THIS CASE THE ISS UES IN DISPUTE NEEDS TO BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) T O DECIDE THE SAME AFRESH, AS PER LAW. ACCORDINGLY, THE ISSUES IN DI SPUTE ARE SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT(A) AND THE LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUES IN DISPUTE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREF ORE, AS REQUESTED BY THE LD. COUNSEL OF THE ASSESSEE, THE ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO BE PRESENT BEFORE THE LD. CIT(A) ON 12.01.2017 AT 10.00 AM AND FULLY COOPERATE WITH THE LD. CIT(A) AND DID NOT TAKE ANY 6 UNNECESSARY ADJOURNMENT AND FILE ALL THE NECESSARY PAPERS BEFORE HIM TO SUBSTANTIATE HIS CASE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13/12/2016 . SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 13/12/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES