M/s. Utkal Minerals, Cuttack V. ITO, Ward-2(3), Cuttack

ITA 43/CTK/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7581 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 16-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SAHULALATENDU SAHU ADVS
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 64; 43

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM . / ITA NO. 43 /CTK/201 6 ( / ASSESSMENT YEAR : 2011 - 2012 ) M/S UTKAL MINERALS, C/O LATE D.N. MOHANTY, BUXI BAZAR, CUTTACK VS. ITO, WARD - 2(3), CUTTACK ./ PANNO. : A ABFU 2706 Q ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SH . S.N.SAHU/LALATENDU SAHU, ADVS. /REVENUE BY : SH RI SUBHENDU DUTTA , DR / DATE OF HEARING : 16 / 01 /20 20 / DATE OF PRONOUNCEMENT : 28 / 01 /20 20 / O R D E R PER L.P.SAHU , A M : TH E ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER OF CIT(A), CUTTACK , DATED 29.07.201 5 FOR ASSESSMENT YEAR 2011 - 2012. 2. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 115 DAYS IN FILING THE PRESENT APPEAL BY THE ASSESSEE. THE ASSESSEE HAS FILED AN APPLICATION ALONG WITH AFFIDAVIT EXPLAINING THE DELAY IN FILING THE APPEAL. LD. DR HAS NO OBJEC TION TO CONDONE THE DELAY. WE HAVE GONE THROUGH THE APPLICATION FOR CODONATION OF DELAY SUPPORTED WITH AN AFFIDAVIT FILED BY THE ASSESSEE AND FOUND THAT THERE IS A SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL. HENCE, WE CONDONE THE DELAY AND APPEAL IS H EARD ON MERITS. ITA NO. 43 /CTK/201 6 2 3. THE ASSESSEE HAS FILED CONCISE GROUNDS OF APPEAL WHICH READ AS UNDER : - 1. THAT THE ASSESSMENT MADE BY THE LEARNED AO CONFIRMED BY THE LEARNED CIT(APPEALS) WITHOUT GIVING CONSIDERATION TO THE WRITTEN SUBMISSIONS FILED AND EXAMINING T HE POINTS RAISED IS ILLEGAL, ARBITRARY, UNJUST AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND THEREFORE THE ASSESSMENT IS LIABLE TO BE QUASHED. CASE LAWS : - A) A. VENKAT RAO VS. CIT, 203 ITR 64 (ORI) B) GANGARAM CHAPOLIA VS. ITO, 187 ITR 594 (ORI) 2. THAT THE LEDGER COPY OF TRANSACTION BETWEEN M/S. UTKAL MINERALS AND SRI GANESH SPONGE IRON PVT. LTD FILED BEFORE THE LEARNED CIT(APPEALS) SHOULD HAVE BEEN JUDICIOUSLY CONSIDERED AND ACCEPTED AS TRUE AND CORRECT IN VIEW OF THE FACTS ARE DULY AUDITED U/S 44 AB OF THE I.T. ACT, 1961. AND NOT DOING SO, THE ORDER HAS BECOME AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND NULLITY. [CIT VS. APOLLO TYRES, 255 ITR 273 (SC)] 3. THAT THE ADDITION OF RS. 81,00,000/ - MADE BY THE AO CONFIRMED BY THE CIT(APPEALS) PAID T OWARDS RENT COMPENSATION IN ACCORDANCE WITH THE AGREEMENT PRODUCED IN COURSE OF ASSESSMENT PROCEEDING SHOULD HAVE BEEN ALLOWED BY THE AUTHORITIES BELOW. 4. THAT THE TRANSACTION OF SALE WITH M/S. TAURION IRON & STEELS CO. (P) LTD SHOULD HAVE BEEN ACCEPTE D AND SHOULD NOT HAVE BEEN DOUBLE. THE AO IS NOT JUSTIFIED ESTIMATING NP @ 15% RESULTING AN ADDITION OF RS.3,94,690/ - UNDER THE HEAD UNACCOUNTED SALE AND THE CIT(APPEALS) IS NOT JUSTIFIED IN SUSTAINING THE SAID ADDITION. 5. THAT THE ASSESSEE DID NOT REC EIVE CONTRACT PAYMENT OF RS. 2,25,001/ - FROM M/S. BAGADIYA BROTHERS DURING THE RELEVANT YEAR THEREFORE THE LEARNED AO IS NOT JUSTIFIED IN MAKING ADDITION OF THE SAID AMOUNT AND THE CIT(A) IN CONFIRMING THE SAME AS THE SAID TRANSACTION HAS BEEN DULY REFLECT ED IN THE ACCOUNTS OF THE SUBSEQUENT YEAR. 6. THAT OTHER GROUNDS IF ANY WILL BE URGED AT THE TIME OF HEARING OF APPEAL. 4. AT THE OUTSET, LD. AR BEFORE US SUBMITTED THAT THE ACCOUNTS OF THE ASSESSEE HAVE DULY BEEN AUDITED U/S.44AB OF THE ACT AND THE AS SESSEE FILED THE LEDGER COPY OF THE TRANSACTION BETWEEN M/S UTKAL MINERALS AND SRI GANESH SPONGE IRON PVT. LTD. BEFORE THE CIT(A), HOWEVER, WITHOUT CONSIDERING THE SAME, THE CIT(A) AFFIRMED THE ADDITIONS MADE ITA NO. 43 /CTK/201 6 3 BY THE AO. IT WAS ALSO CONTENDED THAT THE ASSES SEE HAS ALSO FILED PROFIT AND LOSS ACCOUNT OF M/S SRI GANESH SPONGE IRON (P) LTD. FOR THE F.Y.2011 - 2012, WHEREIN THE CLAIM OF EXPENDITURE HAS CORRECTLY BEEN REFLECTED. THEREFORE, LD. AR SUBMITTED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) MAY KINDLY BE DELETED. 5. ON THE OTHER HAND, LD. DR VEHEMENTLY OPPOSED TO THE ARGUMENTS OF LD. AR OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE COULD NOT SUBSTANTIATE HIS CLAIM PROVIDING ANY DOCUMENTARY EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. EVEN THE ASSESSEE BEFORE THE CIT(A) COULD NOT CLARIFY AS TO WHY M/S TRIVENI EARTH MOVERS PVT. LTD. HAS BEEN TAKEN THE LAND ON RENT FROM THE ASSESSEE RATHER THAN TAKING IT FROM M/S SRI GANESH SPONGE IRON PVT. LTD., IF THE LAND IS ALREADY IN LEASE TO M/ S SRI GANESH SPONGE IRON PVT. LTD. LD. DR ALSO CONTENDED THAT THE ASSESSEE WAS UNABLE TO CLARIFY THE TRANSACTIONS AS CLAIMED BY HIM. THEREFORE, BOTH THE AUTHORITIES BELOW HAVE RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE AND THE APPEAL OF THE ASSESSEE DES ERVES TO BE DISMISSED. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSING THE ENTIRE MATERIAL ON RECORD, WE FIND THAT THE AO MADE ADDITIONS ON ACCOUNT OF INABILITY OF THE ASSESSEE TO PRODUCE THE DOCUMENTS AS REQUIRED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. BEFORE THE CIT(A), THE ASSESSEE FILED COPY OF LEASE AGREEMENT MADE BETWEEN THE ASSESSEE AND SRI GANESH SPONGE IRON (P) ITA NO. 43 /CTK/201 6 4 LTD. ALONG WITH THE PROFIT AND LOSS ACCOUNT OF THE ABOVE COMPANY. AS PER THE CIT(A), THE ASSESSEE COUL D NOT CLARIFY AS TO WHY M/S TRIVENI EARTH MOVERS PVT. LTD. HAS BEEN TAKEN THE LAND ON RENT FROM THE ASSESSEE RATHER THAN TAKING IT FROM M/S SRI GANESH SPONGE IRON PVT. LTD., IF THE LAND IS ALREADY IN LEASE TO M/S SRI GANESH SPONGE IRON PVT. LTD. BEFORE US, LD. AR SUBMITTED THAT BOTH THE AUTHORITIES HAVE NOT CONSIDERED THE EXPLANATION FILED BY THE ASSESSEE AND THE DOCUMENTS PRODUCED BEFORE THEM. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT GOING MUCH INTO THE MERIT OF THE CASE, TO ME ET THE END OF JUSTICE , WE REMIT THE MATTER BACK TO THE FILE OF AO TO DECIDE THE CLAIM OF THE ASSESSEE AFRESH AFTER ACCEPTING THE EXPLANATION OF THE ASSESSEE AND VERIFYING THE DOCUMENTS AVAILABLE WITH THE ASSESSEE TO SUBSTANTIATE HIS CLAIM . NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE AO FOR EARLY DISPOSAL OF THE CASE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 01 /20 20 . S D/ - ( C.M.GARG ) S D/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 28 / 01 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. ITA NO. 43 /CTK/201 6 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - M/S UTKAL MIN ERALS, C/O LATE D.N.MOHANTY, BUXI BAZAR, CUTTACK 2. / THE RESPONDENT - ITO, WARD - 2(3), CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUAR D FILE. //TRUE COPY//