Commercial Engineers & Body Builders Co. Ltd., Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 457/LKW/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92183 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-04-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PINKI MAHAWAR
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.45 7 /LKW/2013 ASSESSMENT YEAR:2010 - 11 DY.C.I.T., RANGE - 6, KANPUR. VS M/S COMMERCIAL ENGINEERS & BODY BUILDERS CO. LTD., 84/105, G. T. ROAD, KANPUR. PAN:AAACC5823E (RESPONDENT) (APPELLANT) ITA NOS.45 8 TO 460/LKW/2013 A.YRS:2006 - 07, 2009 - 10 & 2010 - 11 DY.C.I.T., RANGE - 6, KANPUR. VS M/S COMMERCIAL AUTOMOBILES PVT. LTD., 84/105, G. T. ROAD, KANPUR. PAN:AACCC4267E (RESPONDENT) (APPELLANT) SHRI RAKESH GARG, ADVOCATE ASSESSEE BY SMT. PINKI MAHAWAR, D.R. REVENUE BY 22/04/2015 DATE OF HEARING 22 /06/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. OUT OF THIS BUNCH OF FOUR APPEALS, THERE IS ONE APPEAL OF THE ASSESSEE M/S COMMERCIAL ENGINEERS & BODY BUILDERS CO. LTD. FOR ASSESSMENT YEAR 2010 - 11 AND REMAINING THREE APPEALS ARE IN THE CASE OF A DIFFERENT ASSESSEE I.E. M/S COMMERCIAL AUTOMOBILES PVT. LT D. FOR ASSESSMENT YEARS 2006 - 07, 2009 - 10 & 2010 - 11 . ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT OUT OF THIS BUNCH OF FOUR APPEALS, IN THREE CASES , THE ORDER OF CIT(A) IS EX - PARTE QUA THE ASSESSEE AND IN I.T.A. NO.458/LKW/2013, ALTHOUGH THE CIT(A) HAS NOTED THE PRESENCE OF SHRI S. N. MISHRA AND SHRI ASHOK BAJPAI, A.R. OF THE ASSESSEE AND SHRI RAKESH GARG , ADVOCATE, THE DECISION OF CIT(A) IS EX - PARTE IN PRACTICAL TERMS BECAUSE THE REQUIRED DETAILS COULD NOT BE FILED BY LEARNED A.R. OF THE ASSESSEE BEFORE THE CIT(A) AS HAS BEEN NOTED BY HIM IN PARA 2 & 3 OF HIS ORDER. HE ALSO SUBMITTED THAT EVEN IF NO COMP LIANCE WAS MADE BEFORE CIT(A), HE SHOULD HAVE CONSIDERED AT LEAST THE FACTS BROUGHT ON RECORD BY THE ASSESSEE IN THE STATEMENTS OF FACTS FILED BEFORE HIM BUT CIT(A) HAS NOT DONE SO AND THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER SHOULD BE RESTORED BA CK TO HIS FILE FOR A FRESH DECISION AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. LEARNED D.R. OF THE REVENUE SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS PROVIDED BY CIT(A) AND THEREFORE, NO FURTHER OPPORTUNITY SHOULD BE PROVIDED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE THAT EVEN IF NONE APPEARED BEFORE CIT(A), HE SHOULD HAVE CONSIDERED ALL THE MATERIAL AVAILABLE ON RECORD FOR THE PURPOSE OF DECIDING T HE APPEAL. IN I.T.A. NO.457/LKW/2013, WE FIND THAT A HUGE AMOUNT OF RS.71,36,045/ - WAS TREATED BY THE ASSESSING OFFICER AS TAXABLE INCOME, WHICH IS ON ACCOUNT OF FOREIGN EXCHANGE RATE DIFFERENCE. IN THE STATEMENT OF FACTS FILED BEFORE THE CIT(A), IT WAS EXPLAINED BY THE ASSESSEE THAT THIS AMOUNT IS NET GAIN ON ACCOUNT OF EXCHANGE RATE DIFFERENCE IN RESPECT OF MACHINERY IMPORTED BY THE ASSESSEE. IT IS ALSO SUBMITTED IN THE STATEMENTS OF FACTS THAT ON THE DATE OF IMPORT OF MACHINERY, THE ENTRIES WERE PASSE D ON THE BASIS OF EX CHANGE RATE PREVAILING AT THE POINT OF TIME BUT AT THE TIME OF PAYMENT TO THE SUPPLIER, THERE WAS 3 FAVOURABLE MOVEMENT IN THE FOREIGN EXCHANGE RATE AND ASSESSEE HAD NET GAIN OF RS.71,36,045/ - . THE ASSESSEE HAS ALSO REFERRED TO A JUDGMEN T OF HON'BLE PUNJAB & HARYANA HIGH COURT RENDERED IN THE CASE OF CIT VS. INTERNATIONAL [2009] 180 TAXMAN 584 (P&H) AND ALSO A JUDGMENT IN THE CASE OF CIT VS. JAI PARABOLIC SPRINGS LTD. [2008] 306 ITR 42 (P&H). WE ARE OF THE CONSIDERED OPINION THAT THE DEC ISION OF CIT(A) SHOULD HAVE BEEN AFTER CONSIDERING THE STATEMENT OF FACTS AND THESE JUDGMENTS AND SINCE THIS WAS NOT DONE BY CIT(A), WE FEEL THAT IN THE INTEREST OF JUSTICE, THE ENTIRE MATTER SHOULD GO BACK TO CIT(A) FOR FRESH DECISION. ACCORDINGLY, WE SE T ASIDE THE ORDER OF CIT(A) IN ALL THE CASES AND RESTORE THE ENTIRE MATTER TO HIM FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. SINCE WE ARE RESTORING THE ENTIRE MATTER BACK TO CIT(A), WE ARE NOT MAKING ANY COMM ENT ON THE MERIT OF VARIOUS ISSUES RAISED BY THE ASSESSEE IN THESE APPEALS. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 /06/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR