IKA Processor & Distributors (P) Ltd., New Delhi V. ITO, New Delhi

ITA 4042/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4256 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-05-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 31-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.4042/DEL/2010 ASSESSMENT YEAR : 2000-01 IKA PROCESSOR & DISTRIBUTORS (P) LTD., 512, USHA KIRAN COMMERCIAL COMPLEX, AZADPUR, NEW DELHI. PAN : AAAC19685A VS. ITO, WARD 11 (3), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. MONA MOHANTY, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED A GAINST THE ORDER PASSED BY THE CIT (A) DATED 6 TH JULY, 2010 FOR ASSESSMENT YEAR 2000-01. THE GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XI GROSSLY ERRED IN ALLEGING THAT THE APPELL ANT IS NOT INTERESTED IN PROSECUTION OF APPEAL, AND DISMISSING THE APPEAL OF APPELLANT IN LIMINE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XI GROSSLY ERRED NOT PROVIDING THE PROPER OPPORTUNITY OF BEING HEARD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. COMMISSIONER OF INCOME TAX ITA NO.4042/DEL/2010 2 (APPEALS)-XI GROSSLY ERRED IN:- A) UPHOLDING THE ADDITIONS OF ` 76,61,000/- AS UNEXP LAINED SHARE CAPITAL, WHICH IS OTHERWISE FULLY DISCLOSED AND SUPPORTED WITH THE LEGALLY TENABLE DOCUMENTARY EVIDENCES . B) UPHOLDING THE DISALLOWANCE OF THE TOTAL EXPENDITURE OF ASSESSEE AMOUNTING TO ` 9,42,262/-, WHICH IS OTHERWISE WHOLLY & EXCLUSIVELY INCURRED FOR BUSINESS PURPOSES AND ALLOWED IN LAW. C) UPHOLDING THE ESTIMATION OF COMMISSION INCOME @ 2.50% AMOUNTING TO ` 1,91,525/- WITHOUT ANY BASE OR ANY MATERIAL ON RECORD. 4. THE APPELLANT CRAVE RIGHT TO ADD/DELETE/ALTER OR MOD IFY ANY OR ALL GROUNDS OF APPEAL. THESE ACTION OF HONBLE COMMISSIONER OF INCOME TAX (APPEALS)-XI, NEW DELHI, AND LD. ASSESSING OFFICER BEING ARBITRARY, UNJUST, ILLEGAL AND INVALID IN LAW LIABLE TO QUASHED AND IT IS PRAYED TO YOUR HONOUR THAT THEY PLEASE BE QUASHED AND/OR ANY OTHER RELIEF JUST DEEM FIT AND PROP ER PLEASE BE DIRECTED. 2. NOTICE OF HEARING WAS SENT TO THE ASSESSEE, HOWEVER, N ONE WAS PRESENT ON THE DATE OF HEARING. IT WAS OBSERVED FROM GROUND NO.1 THAT LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE ADDITIONS, THERE FORE, THE PRESENT APPEAL WAS HEARD EX PARTE QUA THE ASSESSEE AS, ACCORDING TO THE WELL SETTLED LAW EXPLAINED IN THE DECISION OF THE TRIBUNAL IN THE CASE OF GUJARAT THEMIST BIO SYSTEMS LTD. VS. JCIT 74 ITD 339 ( AHM.), IT IS OBLIGATORY ON CIT (A) TO PASS A SPEAKING ORDER STATING POINTS RAISED IN THE APPEAL, HIS DECISION THEREON AND THE REASON FOR SUC H DECISION. 3. LD. DR, RELYING UPON THE ORDER OF THE CIT (A) WH EREIN ON ACCOUNT OF FAILURE OF THE ASSESSEE LD. CIT (A) HAS DECIDED THE A PPEAL FILED BY THE ASSESSEE EX PARTE AND HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE. ITA NO.4042/DEL/2010 3 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD. D R AND CAREFULLY GONE THROUGH THE ORDER PASSED BY THE CIT (A ). WE FIND THAT LD. CIT (A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE FOLLOWING THE DECISION OF M.P. HIGH COURT IN THE CASE OF TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 (MP) AND ALSO THE DECISION OF THE TRIBUNAL IN THE CASE OF SANJEEV SIKKA VS. ITO IN ITA NO.01/DEL/2010 D ATED 3 RD MARCH, 2010 AND HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE. THE ISSUE THAT WHETHER CIT (A) HAS SUCH POWER OR NOT HA S BEEN DISCUSSED IN THE AFOREMENTIONED DECISION OF AHMEDABAD I TAT WHEREIN IT HAS BEEN HELD THAT IT IS OBLIGATORY FOR CIT (A) TO PASS A SPEAKING ORDER STATING POINTS RAISED IN APPEAL, HIS DECISION THEREON AN D REASON FOR SUCH DECISION. PLENARY JURISDICTION IS CONFERRED ON TH E TRIBUNAL IN THE MATTER OF PASSING ORDER U/S 254 (1). THERE IS NO SUCH STI PULATION IN SECTION 250 (6). AS SUCH, IT IS NOT POSSIBLE FOR CIT (A ) TO DISMISS THE APPEAL IN LIMINE. THE MANDATE OF LAW MAKES IT VERY CLEAR THAT CIT (A) IS DUTY BOUND TO DECIDE THE ISSUE ON MERITS. THE DECISIO N OF THE CIT (A) WAS HELD TO BE RIDDLED WITH INFIRMITY. THEREFORE, F OLLOWING THE AFOREMENTIONED ORDER OF THE TRIBUNAL, WE SET ASIDE TH E IMPUGNED ORDER PASSED BY THE CIT (A) AND DIRECT HIM TO DECIDE THE AP PEAL OF THE ASSESSEE AFTER PROVIDING THE ASSESSEE A REASONABLE OPPORTUNI TY OF HEARING AND IN THE MANNER MENTIONED IN THE AFOREMEN TIONED ORDER OF THE TRIBUNAL. WE DIRECT ACCORDINGLY. SINCE WE ARE RESTORING THE ENTIRE APPEAL TO THE FILE OF THE CIT (A), WE DO NOT EXPRESS ANY OPINION ON MERITS WHICH WILL BE DECIDED BY THE CIT (A) AS PER OU R DIRECTIONS GIVEN ABOVE. ITA NO.4042/DEL/2010 4 5. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPEAL FI LED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 03.05.20 11. SD/- SD/- [K.D. RANJAN] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 03.05.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES ITA NO.4042/DEL/2010 5 DATE OF DICTATION 03.05.2011 DATE OF PRESENTATION OF THE DRAFT ORDER TO THE MEMBER 04.05.2011 DATE OF RETURN FROM THE BENCH AFTER PRONOUNCEMENT &SIGNING DATE OF DISPATCH OF THE ORDER TO THE BENCH