M/s Ishwar Singh Malik & Co., Haryana V. ITO, Panipat

ITA 3993/DEL/2011

• Counselvise Citation: 399320114 RSA 2011
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER I.T. A. NO.3993/DEL/2011 ASSESSMENT YEAR : 2007-08 M/S. ISHWAR SINGH MALIK & CO., ASSESSING OFFICE R, V.P.O. BALANA, DISTT. PANIPAT. VS. WARD-4, PANIP AT. PAN: AABFI9025Q (APPELLANT) (RESPONDEN T) APPELLANT BY : SHRI J.B. SHARMA, ADVOCATE. RESPONDENT BY : SHRI SALIL MISHRA, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 1 6.06.2011 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) PE RTAINING TO THE ASSESSMENT YEAR 2007-08. 2. THE PRELIMINARY GROUND RAISED BY THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS FAILED TO GIVE SUFFICIENT TIME TO THE A SSESSEE TO SUBMIT THE PAPERS/DOCUMENTS BEFORE COMPLETING THE ASSESSMENT U NDER SEC. 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT). THE ASSESSEE HAS A LSO RAISED AGROUND ON MERIT STATING THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE AOS 2 ACTION IN ESTIMATING THE NET INCOME OF THE ASSESSEE BY APPLYING RATE OF NET PROFIT AT 12%. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 4. IN THIS CASE, A RETURN OF INCOME DECLARING TOTAL INCOME AT RS.58,530/- WAS FILED BY THE ASSESSEE ON 29.10.2007. THEREAFTE R, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SEC. 143(2) WAS ISSUE D TO THE ASSESSEE ON 28.08.2009, WHICH WAS DULY SERVED UPON THE ASSESSEE ON 3.09.2009. THEREAFTER, THE ASSESSING OFFICER HAD TAKEN UP THE CASE OF ASSESSMENT BY ISSUING NOTICE UNDER SEC. 143(2) AND 142(1) ALONG W ITH A DETAILED QUESTIONNAIRE ISSUED ON 18.12.2009 FIXING THE HEARI NG ON 24.12.2009. THE NOTICE ISSUED ON 18.12.2009, WAS SERVED UPON THE AS SESSEE ON 22.12.2009, IN RESPONSE TO WHICH, THE ASSESSEE AUTHORIZED REPRESE NTATIVE APPEARED BEFORE THE AO WHEN NO BOOKS OF ACCOUNTS WERE PRODUCED. TH EREAFTER, THE MATTER WAS ADJOURNED TO 26.12.2009 REQUIRING THE ASSESSEE TO FILE REPLY IN RESPECT OF THE QUESTIONNAIRE GIVEN BY THE AO. ON 26.12.2009, THE ASSESSEE SUBMITTED REPLY/DOCUMENTS IN RESPECT OF 10 POINTS OUT OF 14 P OINTS RAISED BY THE AO. AGAIN ON 29.12.2009 THE ASSESSEE SUBMITTED REPLY WI TH REGARD TO 2 POINTS OUT OF THE REMAINING 4 POINTS AND REQUESTED THE AO TO G IVE SOME MORE TIME FOR HEARING. HOWEVER, ON THE VERY SAME DAY I.E. ON 29. 12.2009 HE PASSED THE 3 ASSESSMENT ORDER. FROM THIS, IT IS SEEN BY US THAT WHOLE PROCEEDINGS WERE COMPLETED WITHIN 5 DAYS FROM 24.12.2009 TO 29.12.20 09 AS THE LAST DAY FOR PASSING THE ASSESSMENT ORDER WAS 31 ST DECEMBER, 2009. WE, THEREFORE, FIND THAT THE ASSESSMENT ORDER HAS BEEN MADE IN HASTE WI THOUT GIVING SUFFICIENT TIME TO THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUN TS ALONG WITH OTHER DETAILS. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEARNED COUNSEL FOR THE ASSESSEE AHS GIVEN AN UNDERTAKING THAT IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE, THE ASSESSEE SHALL PRODUCE ALL THE BO OKS OF ACCOUNTS AND RELEVANT VOUCHERS AND DETAILS BEFORE THE AO WITHOUT ANY FURTHER DELAY AND SHALL COOPERATE WITH THE AO IN FINALIZING THE ASSES SMENT AFTER EXAMINING THE ASSESSEES BOOKS OF ACCOUNTS AND OTHER DETAILS. 5. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND AFTER HEARING BOTH THE PARTIES, WE FIND IT JUST AND PROPER TO RESTORE THE ASSESSMENT ORDER AS A WHOLE TO THE FILE OF THE ASSESSING OFFICER FOR HIS FRESH ASSESSMENT AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS AND OTHER DETAILS AS MAY BE REQUI RED BY THE AO FROM TIME TO TIME. WE DIRECT THE ASSESSEE TO PRODUCE THE BOO KS OF ACCOUNTS AND OTHER DETAILS AND VOUCHERS BEFORE THE AO ON THE VERY FIRS T DAY OF HEARING WHEN THE MATTER IS FIXED FOR FRESH HEARING BY THE AO WITHOUT INDULGING INTO ANY DILATORY TACTICS. THE ASSESSEE SHALL COOPERATE WIT H THE AO IN FINALIZING THE 4 ASSESSMENT AS PER LAW AND IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE CASE OF ASSESSEES FAILURE TO PRODUCE BOOKS OF ACCOUNTS AND OTHER DETAILS AS MAY BE REQUIRED BY THE AO, THE AO SHALL BE AT LIBERTY TO MAKE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT IN THE LIGHT OF THE MATERIALS AVAILABLE ON RECORD. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 7. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 4 TH NOVEMBER, 2011. SD/- SD/- (A.N. PAHUJA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH NOVEMBER, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.