Lehriya Caterers Private Limited, JODHPUR V. ACIT, JODHPUR

ITA 40/JODH/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7985 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KONKANI
• Assessee Lawyers: G R VERMA
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 40/JU/2011 ASSESSMENT YEAR : 2007-08 M/S LEHRIYA CATERERS PRIVATE LIMITED, VS THE ACIT, CIRCLE-1, (PREVIOUSLY KNOWN AS SAMKIT ART & JODHPUR CRAFT PVT. LTD), JODHPUR. PAN NO. AAHCS2423D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. VERMA RESPONDENT BY : SHRI G.R. KONKANI DATE OF HEARING : 21.12.2012 DATE OF PRONOUNCEMENT : 21.12.2012 ORDER PER N.K.SAINI, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 24.11.2010 OF CIT(A), JODHPUR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD CIT(A) HAS ERRED IN UPHOLDING THE ADDITION M ADE BY THE ASSESSING OFFICER U/S 69 FOR RS. 63,56,910/- . 2 2. THAT THE CONSEQUENTIAL RELIEF FOR CHARGING INTER EST MAY KINDLY BE GIVEN. 3. THE APPELLANT CRAVE LIBERTY TO ADD, AMEND, ALTER , MODIFY, OR DELETE ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 4. THE APPELLANT PRAYED FOR JUSTICE. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED THE RETURN OF INCOME ON 13.11.2007 DECLARING TOTAL INCOME OF RS. 14,268/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 [H EREINAFTER REFERRED TO AS 'THE ACT' IN SHORT] ON 20.3.2009. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FAILED TO FURNISH COMPLETE DETAILS AND NOT PRODUCED BOOKS OF ACCOUNT, THE INCOME WAS REQUIRED TO BE ESTIMATED ON THE BASIS OF MATERI AL AVAILABLE ON RECORD. HE FRAMED THE ASSESSMENT ON AN INCOME OF RS. 63,81, 650/-, THE ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BU ILDING U/S 69 OF THE ACT FOR A SUM OF RS. 63,56,910/-. ANOTHER ADDITI ON OF RS. 18,257/- WAS MADE OUT OF THE EXPENSES DEBITED IN THE PROFIT AND LOSS ACCOUNT AND THE LOSS ON ACCOUNT OF SALE OF BUILDING CLAIMED BY THE ASSES SEE AT RS. 7,781/- WAS NOT ALLOWED. 4. THE ASSESSEE PREFERRED AN APPEAL TO THE LD CIT(A ) WHO DECIDED THE APPEAL BY OBSERVING THAT THE POWER OF ATTORNEY IN F AVOUR OF SHRI A.C. MEHTA, CA, SHRI S.C. MEHTA, CA AND SHRI DEVRAJ BOHR A, ADVOCATE WAS FILED BUT IN RESPONSE TO THE NUMBER OF OPPORTUNITIE S PROVIDED NONE OF THEM APPEARED. HE, THEREFORE, DECIDED THE APPEAL ON THE BASIS OF FACTS AVAILABLE IN THE GROUNDS OF APPEAL AND ASSESSMENT ORDER OF TH E ASSESSING OFFICER AND 3 CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. NOW, THE ASSESSEE IS IN APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE WHICH IS A GAINST THE PRINCIPLES OF NATURAL JUSTICE. HE REQUESTED THAT THE APPEAL MAY BE RESTORED TO THE LD CIT(A) TO BE DECIDED ON MERIT AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD DR DID NOT OBJECT IF THE APPEAL IS RESTORED TO THE LD CIT(A) TO BE DECIDED O N MERIT. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND THE MATERIAL AVAILABLE ON RECORD, IT APPEARS THAT THE L D CIT(A) DID NOT PROVIDE A FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHICH IS REQUIRED AS PER PRINCIPLES OF NATURAL JUSTICE AS PER THE MAXIM-AUD I ALTERAM PERTAM I.E. NOBODY SHOULD BE CONDEMNED UNHEARD. WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE ORDER OF LD CIT(A) AND THE MATTER IS RESTORED TO HIS FILE TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 21.12.2012) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 21 ST DECEMBER, 2012 RKK 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR