M/s Mittaso India Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 4659/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97845 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

ITA NO. 4659/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. N O. 4659 /DEL/2013 A.Y. : 200 9 - 10 M/S MITTASO INDIA PVT. LTD., UKLANA ROAD, NARWANA, HARYANA 126116 (PAN AACCM9913B) VS. ITO, WARD 6(4), NEW DELHI CR BUILDING, IP ESTATE, NEW DELHI 2 (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. R.S. SINGHVI, ADV. DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING DATE OF HEARING DATE OF HEARING DATE OF HEARING : : : : 19 1919 19- -- -11 1111 11- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 19 1919 19- -- -1 11 11 11 1- -- -201 201 201 2015 55 5 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A)-IX, NEW DELHI D ATED 24.9.2012 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS :- 1(I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING EXPARTE ORDER WITHOUT SERV ICE OF NOTICE AND PROPER AND REASONABLE OPPORTUNITY. (II) THAT EVEN OTHERWISE, THE CIT(A) HAS PASSED ORD ER IN TOTAL DISREGARD TO PROVISIONS OF SECTION 250(6) OF THE INCOME TAX A CT, 1961 AND ITA NO. 4659/DEL/2013 2 MERELY ON PRESUMPTION THAT THE APPELLANT IS NOT INT ERESTED IN PERUSING THE APPEAL. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE EXPARTE ORDER PASSED BY ASSESSING OFFICER IS ON ILLEGAL AND ARBI TRARY BASIS WITHOUT PROPER SERVICE OF THE NOTICE AND APPLICATIO N OF MIND. 3(I) THAT ESTIMATION OF NET PROFIT AT 5% OF GROSS R ECEIPT IS HIGHLY ARBITRARY AND IN TOTAL DISREGARD TO PAST HISTORY OF THE CASE AND AUDITED BOOKS OF ACCOUNTS. (II) THAT THE AO HAS APPLIED PROVISIONS OF SECTION 44AF ON ILLEGAL AND ARBITRARY BASIS EVEN THOUGH THE RETURN WAS FILED ON THE BASIS OF AUDITED ACCOUNTS AND TAX AUDIT REPORT AND EVEN OTHE R WISE PROVISIONS OF SECTION 44AF ARE NOT APPLICABLE. 4. THAT CIT(A) HAS CONFIRMED TRADING ADDITION ON M ECHANICAL BASIS WITHOUT PROPER APPLICATION OF MIND AND ADJUDICATION OF GROUND RELATING TO ADDITION IN ACCORDANCE WITH PROVISIONS OF SECTION 2150(6) OF THE I.T. ACT, 1961. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS ALSO NOT JUSTIFIED IN CONFIRMING ADDITION OF RS. 4 0,94,854/- IN RESPECT OF SUNDRY CREDITORS AS SUNDRY CREDITORS WER E MERELY REPRESENTED BY PURCHASES AND THERE COULD BE NO FACT UAL OR LEGAL BASIS TO PRESUME THAT SAME REPRESENT UNDISCLOSED IN COME. 6. THAT THE ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. ITA NO. 4659/DEL/2013 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES A RE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THEY ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, SHRI R.S. SINGHVI, LD. C OUNSEL FOR THE ASSESSEE DRAW OUR ATTENTION TOWARDS THE ASSESSMENT ORDER DATED 2 0.12.2011 PASSED U/S. 144 OF THE I.T. ACT, 1961. HE STATED THAT THE AO HAS N OT GIVEN OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM BEFORE HIM. FURTHER HE STATED THAT SIMILARLY, LD. CIT(A) HAS ALSO DECIDED THE APPEAL OF THE ASSES SEE EXPARTE WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSEE AND WRONGLY UPHELD THE EXPARTE ORDER PASSED BY THE AO. THEREFORE, HE REQUESTED THAT THE ISSUES IN DI SPUTE MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE. 4. ON THE CONTRARY, P. DAM KANUNJNA, SR. DR STRONGLY OPPOSED THE REQUEST OF THE ASSESSEE AND STATED THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO AS WELL AS LD. CIT(A), HENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED BY UPHOLDING THE ACTION OF THE LD. CIT(A). 5. SHRI SINGHVI, LD. COUNSEL FOR THE ASSESSEE UNDER TAKE ON BEHALF OF THE ASSESSEE TO FULLY COOPERATE WITH THE AO IN THE ASS ESSMENT PROCEEDINGS AND TO FILE ALL NECESSARY EVIDENCES WITHOUT WASTING OF FUR THER TIME AND ALSO ASSURED THE BENCH THAT HE WILL APPEAR BEFORE THE AO AS AND WHEN DIRECTED BY THIS BENCH. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER PASSED BY THE REVEN UE AUTHORITIES, WE ARE OF THE CONSIDERED VIEW THAT AO AS WELL AS LD. CIT(A) HAS D ECIDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE WITHOUT AFFORDING SUFFICIENT O PPORTUNITY TO THE ASSESSEE. AS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS HAVING ALL NECESSARY EVIDENCES FOR SUBSTANTIATING ITS CLAIM BE FORE THE AO AND ALSO ITA NO. 4659/DEL/2013 4 UNDERTAKE TO FULLY COOPERATE IN THE ASSESSMENT PROC EEDINGS AND TO FILE THE NECESSARY EVIDENCES FOR SUBSTANTIATING ITS CLAIM BE FORE THE AO WITHOUT WASTING OF FURTHER TIME. KEEPING IN VIEW OF THE STATEMENT GIV EN BY THE LD. COUNSEL FOR THE ASSESSEE ON BEHALF OF THE ASSESSEE AND ON THE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT TH E ISSUES IN DISPUTE REQUIRE THOROUGH EXAMINATION AT THE LEVEL OF THE AO. THERE FORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF T HE AO TO CONSIDER THE SAME, AFRESH UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, THE ASSESSEE IS DIRECTED THROUGH ITS COUNS EL TO APPEAR BEFORE THE CONCERNED ASSESSING OFFICER ON 04.04. 04.04. 04.04. 04.04.2016 AT 10.30 AM 2016 AT 10.30 AM 2016 AT 10.30 AM 2016 AT 10.30 AM TO SUBSTANTIATE ITS CLAIM, AS REQUESTED BY HIM. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19/11/2015, U PON CONCLUSION OF HEARING. SD/- SD/- [ [[ [PRASHANT MAHARISHI] PRASHANT MAHARISHI] PRASHANT MAHARISHI] PRASHANT MAHARISHI] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 19/11/2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A ) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4659/DEL/2013 5