Sh. Ashok Kumar, Jagadhari V. DCIT, Yamunanagar

ITA 478/CHANDI/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4503 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-04-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 01-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PERMIL GOEL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 478/CHD/2012 ASSESSMENT YEAR: 2007-08 SH. ASHOK KUMAR, .VS. THE DCIT, PROP. M/S SHANKY SERVICE CO. YAMUNANAGAR JAGADHARI PAN NO. ABMPK5202F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. PERMIL GOEL RESPONDENT BY : SHRI. AKHILESH GUPTA DATE OF HEARING : 26/09/2013 DATE OF PRONOUNCEMENT: 18.10.2103 ORDER PER T.R.SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 16/02/2012 OF CIT (APPEALS), KARNAL. 2. FOLLOWING GROUND HAVE BEEN RAISED IN THI S APPEAL :- ASSESSING OFFICER ERRED IN LAW & FACTS IN DISALLOWI NG BUSINESS LOSS OF RS. 29,60,404/- ON ACCOUNT OF FORF EITURE OF ADVANCE PAID TO M.M.T.C. LTD. FOR PURCHASE OF ZI NC, ON GROUND OF BREACHING CONTRACT AS FIRM FAILED IN L IFTING ZINC BY NOT DEPOSITING BALANCE PAYMENT, DUE TO STE EP 2 FALL IN ZINC PRICES, SUPPLIED BY MMTC LIMITED (A GO VT. OF INDIA ENTERPRISE ) 3. AFTER HEARING BOTH THE PARTIES, WE FIND THAT ASS ESSEE HAD MADE A CLAIM FOR LOSS INCURRED TOWARDS PAYMENT MADE TO M.M.T.C. LTD AMOUNTING TO RS. 29,60,404/-. IT WAS POINTED OUT BEFORE THE ASSESSI NG OFFICER THAT ASSESSEE HAD DEPOSITED CERTAIN PAYMENTS WITH M.M.T.C. LTD FO R PURCHASE OF ZINC SINCE THE PRICES HAS DROPPED DRASTICALLY. THE ASSESSEE PR EFERRED TO GET THE CLAIM FORFEITED AND, THEREFORE, THIS WAS A BUSINESS LOSS. HOWEVER, THE ASSESSING OFFICER DID NOT FIND FORCE IN THE SAME BECAUSE ACCO RDING TO HIM THERE WAS NO FALL IN PRICE. 4. ON APPEAL, LD. CIT(A) CONFIRMED THE ACTION OF TH E ASSESSING OFFICER BY OBSERVING THAT ASSESSEE WAS DEFENDANT NOT BEFORE THE HON'BLE DELHI HIGH COURT WHERE THE SUITE FOR RECOVERY OF BALANCE AMOUN T WAS FILED BY M.M.T.C LTD. ACCORDING TO HIM THE ASSESSEE WAS NOT PROPRIE TOR OF M/S SHANKY SERVICE COMPANY. 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF FOLLOWING ADDITIONAL EVIDENCE CONSISTI NG OF PAPER BOOK FROM PAGES 100 TO 165 AS UNDER:- 01 AFFIDAVIT OF APPELLANT PAGES 101-102 02 WRITTEN STATEMENT OF APPELLANT IN DELHI HIGH COU RT 102-127 03 WRITTEN STATEMENT OF DEFENDANTS O. 2 & 3 IN DEL HI HIGH COURT 128-137 04 AUDITED TRADING/P&L ACCOUNT/BALANCE SHEET FOR Y. E. 31.3.06 138-142 05 COMPLETE AUDITED REPORT FOR Y.E. 31/03/2007 143-159 06 AUDITED TRADING/P&L ACCOUNT/BALANCE SHEET FOR Y .E. 31./3/208 160-165 3 HE SUBMITTED THAT BANK STATEMENT AND BANK CERTIFICA TE, COPY OF WHICH IS AVAILABLE AT PAGES 4 TO 7 WOULD CLEARLY SHOW THAT A SSESSEE IS A PROPRIETOR OF M/S SHANKY SERVICE COMPANY. FURTHER, DOCUMENTS PLA CED IN ADDITIONAL EVIDENCE WOULD CLEARLY SHOW THAT ASSESSEE WAS PROPR IETOR OF THIS ORGANIZATION. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IF ADDITIONAL EVIDENCE IS ADMITTED THAN THE MATTER SHOULD BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER SO THAT THIS ADDITIONAL EVIDENCE COULD BE V ERIFIED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND AGREE WITH THE SUBMISSIONS OF THE LD. DR. WE ADMIT THE ADDITIONAL EVIDENCE BECAUSE THE SAME CAME INTO EXISTENCE AFTER COMPLETION OF THE AS SESSMENT PROCEEDINGS. HOWEVER, THE SAME NEEDS VERIFICATION AND FOR THAT P URPOSE WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO TH E FILE OF ASSESSING OFFICER TO DECIDE THIS ISSUE AFTER EXAMINING THE ADDITIONAL EVIDENCE. 8. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18.10.20 13 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 18 TH OCT., 2013 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR