M/s Aman International, Ludhiana V. Addl. CIT, R-6, Ludhiana

ITA 495/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7557 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, B, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 495/CHD/2018 ASSESSMENT YEAR : 2009-10 M/S AMAN INTERNATIONAL, VS. THE ADDL. CIT, 2639, DUGRI ROAD, URBAN ESTATE, RANGE-6, LUDHIANA. LUDHIANA. PAN NO. AAIFA6591N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH, PROXY COUNSEL FOR SHRI JASWINDER SINGH RESPONDENT BY: SHRI AKHILESH GUPTA, SR.DR DATE OF HEARING : 28.06.2018 DATE OF PRONOUNCEMENT : 17.07.2018 ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 15.12.2017 OF CIT(A)-4 LU DHIANA PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER, AT THE OUTSET IT IS NECESSARY TO ADDRESS T HAT THE REGISTRY HAD POINTED OUT A DELAY OF 59 DAYS. AT THE TIME OF HEARIN G AN ADJOURNMENT WAS MOVED ON BEHALF OF THE LD. AR SEEKING TIME. PROXY COUNS EL SHRI TEJ MOHAN SINGH APPEARING IN SUPPORT OF THE APPLICATION WAS REQUIRED TO ADDRESS THE DELAY. MR. TEJ MOHAN SINGH INVITING ATTENTION TO THE COPY OF THE CONDONATION OF DELAY APPLICATION FILED SUPPORTED BY AN AFFIDAVIT OF MR. MANMINDER SINGH, C.A. OF THE ASSESSEE PLEADED THAT DELAY HA S OCCURRED ON ACCOUNT OF THE PECULIAR FACTS WHERE THE SAID C.A. WAS OUT OF STATION FROM 10.02.2018 TO 20.03.2018 AND THEREAFTER ON HIS RETURN, HE GOT BUSY IN FILING OF INCOME TAX RETURNS OF HIS CLIENTS AND THE LAPSE IN NOT FILING THE APPEAL ENTRUSTED TO HIM OCCURRED DUE TO THIS OVERSIGHT. AS SU CH, IT WAS HIS PRAYER THAT THE DELAY MAYBE CONDONED. 3. MR. AKHILESH GUPTA, SR.DR FOR THE REVENUE CONSIDERING THE MATERIAL ON RECORD POSED NO OBJECTION TO THE SAID REQUEST. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. WE FIND THAT ON BEHALF OF THE ASSESSEE, IT HAS BEE N STATED THAT THE ITA-495/CHD/2018 A.Y. 2009-10 PAGE 2 OF 3 PREVIOUS COUNSEL OF THE ASSESSEE WAS OUT OF STATION FROM 10.02.2018 TO 20.03.2018 AND THEREAFTER ON HIS RETURN, HE GOT BUSY IN FILIN G OF INCOME TAX RETURNS OF HIS CLIENTS AND THE LAPSE OCCURRED BECAUSE OF THIS OVERSIGHT. THE ASSESSEE STATES THAT HE WAS NOT AWARE OF LIMITATION PERIO D FOR FILING OF THE APPEAL. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND CONSIDERING THE RECORD THE DELAY OF 59 DAYS IS CONDONED . WHILE SO CONCLUDING, WE HAVE NOTED THAT NO UNDUE ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE BY FILING THE APPEAL LATE NOR HAS ANY VESTE D RIGHT OF THE REVENUE BEEN UPSET IF THE DELAY IS CONDONED. ACCORDINGLY , CONSIDERING THE EXPLANATION OF THE ASSESSEE DULY SUPPORTED BY THE APPLIC ATION OF THE C.A., THE DELAY IS CONDONED. ORDERED ACCORDINGLY. 5. IT IS SEEN THAT ALTHOUGH VARIOUS GROUNDS HAVE BEEN RAISED BY THE PARTIES, THEY WERE HEARD ONLY IN RESPECT OF THE ISSUE AG ITATED VIDE GROUND NO. 2 IN THE PRESENT APPEAL WHICH READS AS UNDER : 2. THAT THE LEARNED C.I.T(APPEALS-) IS NOT JUSTIFIED IN NOT ADMITTING THE ADDITIONAL EVIDENCE FILED BEFORE HER UNDER RULE 46A OF THE INCOME TAX ACT 1962. 6. ADDRESSING THE ISSUE RAISED IN GROUND NO. 2, LD. AR INVITE D ATTENTION TO PARA 3 OF THE ASSESSMENT ORDER AND SUBMITTED THAT THE AO VIDE ORDERSHEET ENTRY DATED 15.12.2011, CALLED FOR CERTAIN DETA ILS TO BE FILED ON 23.12.2011. ON THE SAID DATE, THE COUNSEL APPEARED BUT RELEVANT DETAILS COULD NOT BE MADE AVAILABLE WHICH LEAD TO THE PASSING OF TH E ASSESSMENT ORDER. THE ADDITIONS SO MADE WERE CHALLENGED BEFORE THE CIT(A) AND APPLICATION UNDER RULE 46A WAS MOVED FOR FILING FRESH EVIDENCE S PLEADING LACK OF OPPORTUNITY BEFORE THE AO. FOR THE SAID PURPOSES , ATTENTION WAS INVITED TO WRITTEN SUBMISSIONS EXTRACTED IN PARA 3.1 OF THE IMPUGNED ORDER AT PAGES 3 TO 5. SPECIFIC ATTENTION WAS INVITED TO PAGE 4 OF THE SAME. FOR READY REFERENCE, RELEVANT EXTRACT IS REPRODUCED HEREUNDER : THE LD. AO WAS ASKED VIDE ORDER-SHEET ENTRY DATED 15.12.2011 FOR PRODUCING BILLS/VOUCHERS OF EXPENSES AND PRODUCE CONFIRMATION FROM THE CREDITORS AND FIXED THE CASE FOR HEARING ON 23.12.2011. ON DATE OF HEARING OF TH E CASE I.E. 23.12.2011, THE COUNSEL OF THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS. THE COUNSEL OF THE ASSESSEE COULD NOT PRODUCE THE ABOVE DOCUMENTS BECAUSE THE ACCOUNTANT OF THE ASSESSEE FIRM WAS ON LEAVE FOR TWO DAYS. WE DIDN'T HAVE THE BILLS/ VOUCHERS OF SAID EXPENSE S AND CONFIRMATION OF CREDITORS ON THE DATE OF HEARING. THE COUNSEL OF THE ASSESSEE REQUESTED TO LD. AO TO PROVIDE ONE DAY FOR PRODUCING THE ABOVE DOCUMENTS. BUT LD. AO REFUSED TO ADJOURN THE CASE ON THE NEXT DATE AND COMPLETED THE ASSESSMENT U/S 143(3) AND MADE ADDITION ON ACCOUNT OF EXPENSES AND SUNDRY CREDITORS. (EMPHASIS SUPPLIED) 6.1. ACCORDINGLY, IT WAS HIS PRAYER THAT THE FRESH EVIDENCE S MAY BE ADMITTED AS THEY ARE RELEVANT AND CRUCIAL FOR DETERMINING THE ISSUES . ITA-495/CHD/2018 A.Y. 2009-10 PAGE 3 OF 3 7. THE LD. SR.DR OPPOSED THE SAID PRAYER RELYING ON PARA 3.3 AND 3.4 OF THE IMPUGNED ORDER STATING THAT MORE THAN THE SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE AND THE COUNSEL MADE PART OF THE INFORMATION SOUGHT AVAILABLE AND DID NOT REQUEST FOR TIME. THE LD. SR.DR WAS REQUIRED TO ADDRESS THE DATE ON WHICH THE ASSESSMENT ORDER WA S PASSED. IN THE ABSENCE OF ANY DATE APPENDED THERETO, LD. SR.DR RELIED UP ON THE NOTING GIVEN BY THE AO AGAINST THE COLUMN DATED AS PER RECORD. 8. WE NOTE THAT THE APPEAL BEFORE THE CIT(A) WAS INSTITUT ED ON 27.01.2012 AS IS EVIDENT FROM PAGE 1 OF THE IMPUGNED ORDER : DATE OF ORDER:15. 12.2017 APPEAL NO. 240/ROT(206)/IT/CIT(A)-4/LDH/2014-15 INSTITUTED ON 27.01.2012 FROM THE ORDER OF DR. GULSHAN RAJ, ADDL. COMMISSIONER OF INCOME TAX,RANGE-VI, LUDHIANA 1. ASSESSMENT YEAR(S) 2009-10 2. PAN AAIFA6591N (EMPHASIS SUPPLIED) 8.1. THUS, ADMITTEDLY THE ORDER WAS PASSED WITHIN A FEW DAYS FROM 23.11.2011, THE DATE FIXED BY THE AO. ACCORDINGLY, LACK OF OPPORTUNITY BEFORE THE AO IS BORNE OUT FROM THE RECORD ITSELF. IN THE CIRCUMSTANCES, THE ISSUE IS RESTORED TO THE CIT(A) WITH A DIRECTION TO PASS T HE ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONA BLE OPPORTUNITY OF BEING HEARD. FRESH EVIDENCES THE ASSESSEE SEEKS TO FILE IN SUPPORT OF ITS CLAIM ARE DIRECTED TO BE ADMITTED. WHILE SO DIRECTING, IT IS M ADE CLEAR THAT IN THE EVENTUALITY THE ASSESSEE ABUSES TRUST REPOSED A ND FAILS TO PARTICIPATE FULLY AND FAIRLY BEFORE THE CIT(A), THE CIT(A) WOULD BE AT LIBER TY TO PASS THE ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.07.2018. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SING H) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.