DIGAMBER SINGH & SONS PROPERTIES PRIVATE LIMITED, KUMHER V. ITO, Wd-1, Bharatpur

ITA 421/JPR/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0320 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-10-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 11-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 40A(3); 143(3)

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 421/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2014-15 Digamber Singh & Sons Properties Private Limited, Kumher cuke Vs. ITO Ward -1, Bharatpur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAECD 8929 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehra (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 18/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 31/10/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 27.04.2023 [here in after ld. NFAC/CIT(A) ] for assessment year 2014-15 which in turn arise from the order dated 17.12.2018 passed under section 143(3) r.w.s 263 of the Income Tax Act, 1961 [ here in after to as Act ] by ITO, Ward-1, Bharatpur. 2 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO 2. At the outset of hearing, the Bench observed that there is delay of 16 days in filing the appeal by the assessee for which the ld. AR of the assessee filed an affidavit stating the reasons for delay and prayed for condonation of delay, the content of the affidavit reads as under :- 3 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO 3. On this issue during the course of hearing, the ld. DR objected to assessee’s application for condonation of delay but at same time prayed that Court may decide the issue as deem fit in the interest of justice. 4. We have heard the contention of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 16 days has as the appeal was to be filed online which is filed on 31.05.2023. Whereas the physical copy was filed belated. This fact is duly supported by the affidavit on records. Therefore, we concur with the submission of the assessee. Thus the delay of 16 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause and therefore, we admit this appeal. 5. In this appeal, the assessee has raised following grounds: - “1. The learned Assessing Authority has grossly erred in law as well facts while treating cash payment of Rs. 16,01,500 to buyer disallowed under section 4)A(3) of income tax Act 1961 and made order. 2. The Learned Assessing Authority has grossly erred in law as well as facts while Rs. 86,126.00 disallowed under the head od Development Expand made order under section 143(3) rws 263 of income tax. It is against the order of 4 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO assessment this appeal is being preferred with a request delete the addition made and allowed on. 6. Succinctly, the fact as culled out from the records is that the assessee is a private limited company, the assessee filed its return of income on 29.11.14 and declaring total income of Rs. 1,66,256/- and Book profit at Rs. 1,30,256/-. The case of the appellant was selected for scrutiny under CASS and assessment was completed Under section143(3) of the Act on 30.03.2016 assessing the Total income at Rs. 2,52,380/- ( Book profit at Rs.2,16,382) thereby making addition of Rs. 86,126/- on account of disallowing out of expenses claimed in profit and loss account. 6.1 On completion of the assessment the ld. PCIT on further examination the record found that the said order was erroneous and prejudicial to the interest of the revenue, and notice issued under section 263 of income tax Act. The PCIT noted that the assessee has made cash payment for an amount of Rs. 16,01,500/- which is required to be disallowed u/s. 40A(3) has not been done and therefore, the order of the assessment was cancelled. Thereafter to complete the assessment proceeding under section 263 r.w.s. 143(3) of the Act notices were issued and the assessee filed the details. Finally assessment was completed u/s143(3 r.w.s 263 of 5 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO the Act on 17.12.2018 assessing the total income at Rs.18,53,880/- by making addition of Rs.16,01,500/ on account of disallowance under section 40A(3) of the Act and Rs. 86,126/- as originally made. 7. As the assessee is aggrieved with the order of the ld. AO passed u/s 143(3)r.w.s. 263 of the Act, an appeal was preferred before ld. CIT(A) and the same was dismissed. The relevant finding of the ld. CIT(A) is as under:- “8. Ground No. 1: In ground No. 1, the appellant has mainly contested the addition of Rs. 16,01,500/- on account of disallowance u/s. 40A(3) of the Act. I have considered the assessment order and the statement of facts filed by the appellant. It is seen that except for stating the ground the appellant has not given any documentary evidence or any submission explaining his case that the addition is factually any legally incorrect. Even otherwise in the absence of any submission or plausible evidence there remains no alternative with the AO but to make an addition. I, therefore, confirm the action of the AO. This addition is therefore confirmed. Ground of Appeal No. 1 is therefore dismissed. 9. Ground No. 2: In ground No. 2, the appellant has mainly contested the addition of Rs. 86,126/- on account of disallowance of development expenses. I have considered the assessment order and the statement of facts filed by the appellant. It is seen that except for stating the ground the appellant has not given any documentary evidence or any submission explaining his case that the addition is factually and legally incorrect. Even otherwise in the absence of any submission or plausible evidence there remains no alternative with the AO but to make an addition. I, therefore, confirm the action of the AO. This addition is therefore confirmed. Ground of Appeal No. 2 is therefore dismissed.” 8. As the assessee did not find any favour, from the order of the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. To support the various grounds 6 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO so raised by the ld. AR of the assessee, he has filed the written submissions and the same is reproduced herein below: “FACTS IN BRIEF 1 Appellant IS A PRIVATE LIMITED COMPANY, THE APPLICANT FILED ITS RETURAN OF INCOME ON29.11.14 AND DECLARING Total income of Ts 1,66,256.00 and Book profit at Rs.1,30,256.00, The case of the appellant was Fixed for scrutiny under CASs and assessment was completed Under section143(3) of the Act on30.03.2016 assessing the Total income at Rs. 2,52,380/( Book profit at Rs.2,16,382) thereby making addicting of Rs86,126.00 on account of disallowing out of expenses claiming in profit and loss account on further exemption it was found that the said order was erroneous and prejudicial to the interest of the revenue, and notice issued under section 263 of income tax as on 29/08/2017 Thereafter to complete the assessment proceeding under section263 of income tax as on19/03/2018 notice under section143(2) of the Act was issued to the appellant on 20.032018, in responses to the same AR of the appellant apprised before the AO from time to time and furnished necessary details Finally assessment was completed u/s143(3) r.w.s 263 of the Act on 17.12.2018 assessing the total income at Rs.18,53,880.00 by making addicting of Rs16,01,500/ on account of disallowing under section 40A(3) of the Act and Rs.86,126.0 on Account of disallowing of development Expenses consequent upon the action of the Another appellant filed the appeal the copy of the same is available at page no. 1 of Paper Book. Pursuant to said impugned proceeding, Ld, AO passed the impugned Assessment Order U/s 143(3) rws r.w.s. 263 of income tax Act on 17.12.2018 assessing total income of the Applicant at Rs. 18,53,880.00/-as against the return income of Rs. 1,66,256.00/- and Book profit at1,30,256.00 by making addition of Rs. 16,87,624.00/-. Being aggrieved by the order of Ld. AO, the Appellant is in appeal before your honor on the following grounds of appeal, against which relevant facts and submission are made while dealing with relevant ground of appeal: GROUND NO.1 Under the facts and circumstances of the case and in law, Impugned assessment order passed u/s 143(3) rws 263 of the income tax Act dated 17.12.2018 the learned assessing officer has grossly erred in law as well facts while treating cash payments purchases of Agriculture land (as a bayana) from agricurist live in village of Rs.16,01,500r disallowed under section 43A(3) of income tax. GROUND NO. 2 7 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO The learned Assessing Authority has grossly erred in law as well as facts while Rs. 86,126.00 disallowed under the head of development Exp made order order under section 143(3) rws 263 of the Income tax Act it is against the order of assessment this appeal is being preferred with the request delete the addition made and allowed on.” 9. The ld. AR of the assessee submitted that the assessee has filed an adjournment application which was not considered, and the appeal has been decided without allowing an opportunity of being heard to the assessee. 10. The ld DR is heard who has relied on the findings of the lower authorities and submitted that the assessee has remained non-compliant to the notices issued and there is not merits in the prayer of the assessee. 11. We have heard the rival contentions and perused the material placed on record. The Bench noted that the assessee is a private limited company. We noticed that the assessment was completed u/s143(3) r.w.s 263 of the Act on 17.12.2018 assessing the total income at Rs.18,53,880/- by making addition of Rs16,01,500/ on account of disallowance under section 40A(3) of the Act. The bench also noted that in the first appeal the assessee was issued the notice on 23.12.2020, 29.01.2021, 08.06.2021 & 17.04.2023. On the last occasion the assessee filed a letter stating some details required 8 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO which was not considered and the appeal was decided without hearing the assessee on its merits, which is against the principles of the natural justice. We also note that the assessee also did not appear even before the tribunal on the appointed date of hearing but considering the fact that the assessee has not exercised its right to hearing before the ld. CIT(A) we fell it in the interest of justice to accept the request of the assessee that the ld. CIT(A) should hear the merits of the case. But at the same time we agree with the contention of the ld. DR that the assessee in habit of not attending the proceeding and time of court and the revenue officers are precious the assessee liable to pay the cost of noncompliant attitude. Based on that aspect of the matter we set aside the case to the file of the ld. CIT(A), so as to decide the case of the assessee on merits after giving proper opportunity of being heard to the assessee subject to the assessee pays Rs. 2500/- to the Prime Minister Relief Fund within 45 days from the receipt of this orders. At the same time, the assessee is directed to represent and present all the facts before the ld. CIT(A) and should not ask for adjournment of trifles grounds. At this stage, we remand back the matter without commenting upon the merits of the case and ld. CIT(A) is directed to pass an order in accordance with law. 9 ITA No. 421/JP/2023 Digamber Singh & Sons Properties Pvt. Ltd vs. ITO In terms of these observations, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 31/10/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 31/10/2023 *Ganesh Kumar, PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Digamber Singh & Sons Properties Private Limited, Kumher 2. izR;FkhZ@ The Respondent- ITO, Ward-1, Bharatpur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 421/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar