M/s. Shahji Diamonds Pvt. Ltd., Muzaffarnagar V. ITO, Muzaffarnagar

ITA 4531/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7379 (ITAT-DELHI)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 22-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Assessee Lawyers: N K ARORA
• Keywords: Depreciation; Opportunity of being heard
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4531/DEL/2014 (ASSESSMENT YEAR-20 10-11) SHAHJI DIAMONDS PVT.LTD., 196, CIVIL LANE, NORTH MUZFFARNAGAR, MUZAFFARNAGAR PAN-AALCS3135J (APPELLANT) VS ITO, WARD-1(1), MUZAFFARNAGAR (RESPONDENT) APPELLANT BY SH. N.K.ARORA, CA RESPONDENT BY SH. FARHAT KHAN, SR.DR. ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 31.03.2014 OF CIT(A), MUZAFFARNA GAR PERTAINING TO 2010 11 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. RIGHT AT THE OUTSET, IT WAS SUBMITTED BY THE LD. SR.DR THAT THE GROUNDS RAISED IN THE PRESENT APPEAL DO NOT ARISE FROM THE IMPUGNED ORDER. THE LD.AR RESPONDING TO THE SAME SUBMITTED THAT THIS IS A SPE CIFIC GRIEVANCE OF THE ASSESSEE ITSELF AS THE CIT(A) HAS PASSED EX-PARTE ORDER BY C UTTING & PASTING THE FACTS OF SOME OTHER CASE WHICH ARE NOT RELATABLE TO THE ASSESSEE AT ALL. IT WAS SUBMITTED THAT THE SITUATION HAS ARISEN ON ACCOUNT OF THE FACT THAT TH E CONCERNED CIT(A) WAS SIMULTANEOUSLY HOLDING CHARGE OF TWO OTHER PLACES ALONGWITH THE REGULAR CHARGE OF MUZAFFARNAGAR NAMELY CIT(A), GHAZIABAD AND ALSO CIT (A), MEERUT. ACCORDINGLY HIS PRESENCE AT MUZARFARNAGAR WAS MORE LESS INSIGNIFICA NT RESULTING IN HEARINGS CONCLUDED IN HASTE AND FREQUENTLY RECORDING THAT DE SPITE OPPORTUNITY THE ASSESSEE IS NOT PRESENT. INVITING ATTENTION TO FORM NO.35 I T WAS SUBMITTED THAT THE ASSESSEE DATE OF HEARING 22.06.2016 DATE OF PRONOUNCEMENT 19.08.2016 I.T.A .NO.-4531/DEL/2014 PAGE 2 OF 3 HAS ONLY ASSAILED THE G.P. ADDITION OF RS.12,48,297 /-; ANOTHER ADDITION OF RS.12 LACS; DISALLOWANCE OF EXPENSES OF RS.8,000/-; RS.1 ,26,872/- FOR PERSONAL USER AND DEPRECIATION OF CAR ON ACCOUNT OF NO LOG BOOK WHEN THESE ARE CONSIDERED WITH THE ISSUES WHICH HAVE BEEN DISCUSSED IN THE IMPUGNED OR DER IT WOULD SHOW THAT SOME UNCONNECTED ISSUES NOT RELATABLE TO THE ASSESSEE A RE CONSIDERED. ACCORDINGLY IT WAS HIS PRAYER THAT THE ISSUE MAY BE RESTORED BACK TO THE CIT(A) FOR ADJUDICATION AFRESH. ON QUERY IT WAS SUBMITTED THAT HE WOULD GI VE HIS ORAL UNDERTAKING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS. 3. LD.SR.DR SUBMITTED THAT ON CONSIDERATION OF THE ADDITIONS MADE IN THE ASSESSMENT ORDER AND THE ISSUES CONSIDERED IN THE C IT(A)S ORDER THERE DOES APPEAR TO BE A MIS-MATCH. ACCORDINGLY HE HAD NO OBJECTION IF THE ISSUE IS RESTORED TO THE CIT(A). 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, I FIND THAT IN THE INTERESTS OF JUSTICE THE IMPUGNED ORDER DESERVES TO BE SET ASIDE AND THE ISSUES NEED TO BE REMANDED TO THE CIT (A). IT IS SEEN ON A CONSIDERATION OF THE ISSUES ADDRESSED IN THE ASSES SMENT ORDER AND THE IMPUGNED ORDER IT IS EVIDENT THAT THERE IS A CONTRADICTION O N FACTS WHEREIN IN PARA 3 THE CIT(A) REFERS TO ADDITION OF RS.2 LACS. ON ACCOUNT OF SHARE APPLICATION MONEY BY THE AO. IN PARA 3.2 HE REFERS TO ADDITION OF RS.27, 82,441/- U/S 43B HAS BEEN MADE. SIMILARLY THE OTHER ADDITIONS REFERRED TO HA VING BEEN MADE BY THE AO ARE NOT FOUND ADDRESSED IN THE ASSESSMENT ORDER. ON TH E OTHER HAND, THE ADDITIONS MADE BY THE AO ARE FOUND NOT DISCUSSED IN THE IMPUG NED ORDER. NONE OF THE ISSUES CONSIDERED IN THE IMPUGNED ORDER IT IS SEEN ARE SUBJECT MATTER OF ADDITION IN THE FACTS OF THE ASSESSEES CASE. ACCORDINGLY, IT APPEARS THAT AS FAR AS THE ASSESSEE I.T.A .NO.-4531/DEL/2014 PAGE 3 OF 3 IS CONCERNED THE ORDER UNDER CHALLENGE IS A NON-SPE AKING ORDER AS IT DOES NOT ADDRESS THE GROUNDS RAISED BY THE ASSESSEE. THE RE FERENCE TO OPPORTUNITIES GIVEN AND ADJOURNMENT SOUGHT ACCORDINGLY BECOMES IRRELEVA NT. AS EVEN IF THE ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS THE CIT(A) I N TERMS OF THE SUB-SECTION (6) OF SECTION 250 IS REQUIRED TO SET OUT IN WRITING THE P OINTS FOR DETERMINATION AND THE DECISION THEREON SUPPORTED BY REASONS FOR THE CONCL USION. THE SAID EXERCISE IS FOUND TO BE MISSING. ACCORDINGLY TO MAKE UP THE STATUTORY DEFICIT AVAILABLE ON RECORD THE ISSUE IS SET ASIDE BACK TO THE CIT(A) WI TH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW IN TERMS OF THE STATUT ORY MANDATE. NEEDLESS TO SAY THAT A REASONABLE OPPORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE BY THE CIT(A) BEFORE PASSING THE ORDER. THE OPPORTUNIT Y SO PROVIDED IT IS HOPE IS NOT ABUSED BY THE ASSESSEE AS FAILING WHICH THE LD.CIT( A) SHALL BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST 2016. SD/- (DIVA SINGH ) JUDICIAL ME MBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI