Saikia Auto Private Limited, Noth Lakhimpur V. Deputy Commissioner of Income Tax, Circle-Tezpur, Tezpur

ITA 413/GTY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0137 (ITAT-GUWAHATI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 05-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K DAS
• Assessee Lawyers: AS HOK KUMAR AGARWALLA
• Keywords: Opportunity of being heard; Non-deduction of tax; Reasonable cause; Condonation of delay; Set aside
• Section: 201; 154

Judgement Text

1 IT A NO . 41 3 - 414 / GAU /20 1 9 SAIKIA AUTO PVT. LTD., AY - 2013 - 14 & 20 1 4 - 1 5 IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, E COURT AT KOLKATA () . . , . , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, AM ] I.T.A. NO S . 41 3 & 414 / GAU/201 9 ASSESSMENT YEAR S : 2013 - 14 & 201 4 - 1 5 SAIKIA AUTO PVT. LTD. (PAN: A ALCS3180P) ) VS. DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - TEZPUR APP ELLANT RESPONDENT DATE OF HEARING 1 8 .0 6 .20 20 DATE OF PRONOUNCEMENT 26 .0 6 .20 20 FOR THE APP ELLANT SHRI AS HOK KUMAR AGARWALLA, FCA FOR THE RESPONDENT SHRI M. K. DAS, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM BOTH THESE APPEAL S PREFERRED BY THE ASSESSEE ARE AGAIN ST THE SEPARATE ORDER S OF THE LD. C IT(A) , GUWAHATI - 1, DATED 15 .0 1 .20 1 8 AND 19.12.2018 FOR AY S 2013 - 14 AND 20 1 4 - 1 5 . 2. AT THE OUTSET, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THERE WAS A DELAY OF 190 DAYS AND 221 DAYS RESPECTIVELY TO FILE APPEALS BEFORE US. WE, HOWEVER, FROM THE PERUSAL OF THE AFFIDAVIT AND THE CONDONATION OF DELAY APPLICATION, NOT E THAT THE ASSESSEE WAS SUFFERING FROM SERIOUS ILLNESS AND HAD UNDERGONE PROLONGED TREATMENT AT VNRC HOSPITAL DISPUR, GUWAHATI. SINCE THERE IS A REASONABLE CAUSE FOR DELAY , WE ARE INCLINED TO CONDONE THE DELAY OF THE ASSESSEE IN FILING BOTH THE APPEALS AN D ADMIT THE APPEALS FOR HEARING. 3. COMING TO THE APPEALS, THE LD. AR DREW OUR ATTENTION TO THE FACT THAT THE AO HAD PASSED AN ORDER U/S. 154 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND THE FACT THAT AO HAD BOTHERED TO ISSUE ON LY ONE NOTICE AND WITHOUT HEARING THE ASSESSEE HAS TAKEN NOTE OF THE FAILURE TO DEDUCT TAX AT SOURCE FOR REMUNERATION PAID TO THE DIRECTORS OF THE ASSESSEE COMPANY HAS RESORTED TO DISALLOWANCE BY RESORTING TO SECTION 154 OF THE ACT (RECTIFY THE MISTAKE) A ND CONSEQUENTLY HAS MADE THE ADDITION. 2 IT A NO . 41 3 - 414 / GAU /20 1 9 SAIKIA AUTO PVT. LTD., AY - 2013 - 14 & 20 1 4 - 1 5 4. ACCORDING TO AO, HE FIXED THE MATTER ON 03.08.2017 VIDE NOTICE DATED 18.07.2017, HOWEVER, FOUND THAT ASSESSEE DID NOT APPEAR BEFORE HIM, SO HE PASSED THE SECTION 154 OF THE ACT ORDER DATED 11.08.2017. ON APPEAL, THE LD. CIT(A) HAS DISMISSED THE SAME EX PARTE , WITHOUT GOING INTO THE MERITS OF THE GROUND S RAISED BY THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS BEFORE US ASSAILING BOTH THE ACTION OF LD. CIT(A) AND AO FOR PASSING THE ORDER WITHOUT GIVING PROPER OPPORTUNIT Y OF HEARING. FROM THE DISCUSSION (SUPRA), W E NOTE THAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO AND THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER. THEREFORE , TAKING NOTE OF THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF TIN BOX COM PANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN IT WAS HELD THAT IN CASE IF THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE AO, THEN THE MATTER NEEDS TO BE REMANDED BACK TO AO. IN THE SAID JUDGMENT, THE HONBLE APEX COURT HAS HELD AS UNDER (HEAD NOTE): HELD, REVERSING THE DECISION OF THE HIGH COURT, THAT ONCE THE TRIBUNAL FOUND THAT THE INCOME - TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD , THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHORITY OR BE FORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT COUNTED: THAT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD . (EMPHASIS GIVEN BY US) THEREFORE, IN VIEW OF THE ABOVE FACTS, AND TAKING NOTE OF THE DECISION OF APEX COURT (SUPRA), WE SET ASIDE THE ORDER S OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, BO TH THE APPEAL S OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . IN THE RE SULT, BOTH THE APPEAL S OF ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26 JUNE, 2020 . SD/ - SD/ - ( DR. A. L. SAINI ) ( ABY. T. VARKEY ) AC COUNTANT MEMBER JUDICIAL MEMBER DATED : 26 JUNE, 2020 JD.(SR.P.S.) 3 IT A NO . 41 3 - 414 / GAU /20 1 9 SAIKIA AUTO PVT. LTD., AY - 2013 - 14 & 20 1 4 - 1 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SAIKIA AUTO PVT. LTD., NH 52, TOWN BANTOW, WARD - 14, P.O. KHELMATI, NORTH LAKHIMPUR - 787031, ASSAM. 2 RESPONDENT D.CIT, CIRCLE - TEZPUR 3. 4. CIT (A) , GUWAHATI - 1, GUWAHATI CIT - , GUWAHATI 5 . DR, ITAT, GUWAHATI . / TRUE COPY, BY ORDER, SENIOR PVT. SECY.