Shri Pawan Ojha, Uttar Pradesh V. ACIT, Noida

ITA 4987/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6452 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-11-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 20-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-II, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.4987/DEL/2016 ASSESSMENT YEAR : 2012-13 PAWAN OJHA, PROP. M/S MADE BY INDIA, PLOT NO.99, UDYOG KENDRA-II, ECOTECH-III, GREATER NOIDA, UTTAR PRADESH. VS. ACIT, CIRCLE-2, NOIDA PAN : AAIPO 2946 B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SANDEEP SAPRA, ADV. RESPONDENT BY SHRI F.R. MEENA, SR.DR DATE OF HEARING 10-11-2016 DATE OF PRONOUNCEMENT 29-12-2016 O R D E R PER DIVA SINGH, J.M. : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 24.06.2016 OF THE CIT(A)-I, NOIDA PERTA INING TO 2012-13 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER AT THE TIME OF HEARING, THE PARTIES WERE HEARD ONLY IN RESPECT OF GROUND NO.1 WHICH READ AS UNDER :- 1. THAT THE ORDER OF THE LD. CIT(A)-I, NOIDA WAS B AD IN LAW, AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND ARBITRARY. THE LD . CIT(A) HAS NOT PROVIDED THE SUFFICIENT OPPORTUNITY TO THE APPELLANT BEFORE DECI DING THE APPEAL. 3. THE LD.AR INVITING ATTENTION TO THE IMPUGNED ORD ER SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE CIT(A) WITHOUT ADDRESS ING THE ISSUE ON MERITS AND HAS DISMISSED THE APPEAL ON THE GROUND THAT ON THE TWO DATES THE APPEAL WAS FIXED FOR HEARING, THE ASSESSEE HAD MOVED AN ADJOURNMENT. AC CORDINGLY, IT WAS HIS LIMITED PRAYER THAT THE OPPORTUNITY OF BEING HEARD MAY BE PROVIDED AND THE ISSUE BE RESTORED TO THE CIT(A) FOR A DECISION ON MERITS. 4. THE LD. SR.DR CONSIDERING THE ORDER UNDER CHALLE NGED THOUGH STATED THAT TWO OPPORTUNITIES HAVE BEEN PROVIDED TO THE ASSESSEE I. E. ON 11.05.2016 AND 02.06.2016. 2 ITA NO.4987/DEL/2016 HOWEVER SINCE THE ORDER DOES NOT ADDRESS THE ISSUE ON MERITS WHICH WAS UNDER CHALLENGED BEFORE THE CIT(A) I.E. THE ADDITION MADE BY THE ASS ESSING OFFICER BY WAY OF AD-HOC DISALLOWANCE OF THE EXPENSES CLAIMED. ACCORDINGLY THE PRAYER FOR REMAND TO THE CIT(A) WAS NOT OPPOSED. 5. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE WHO IS STATED TO BE A MANUFACTURER AND EXPORTER OF 100% ORGANIC COTTON KN ITTED GARMENTS BUSINESS DECLARED A TAXABLE INCOME OF RS.42,09,232/-. CONSIDERING THE BILLS AND VOUCHERS OF THE EXPENSES CLAIMED WHICH WERE PRODUCED BY THE ASSESSEE THE AO MADE A DISALLOWANCE OF 1/5 TH OF THE SAME IN ORDER TO PREVENT LEAKAGE OF REVENUE ON THE GROUND THAT CERTAIN EXPENSES WERE UNVOUCHED. 6. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE CIT(A) VIDE GROUND NOS.1 AND 2. HOWEVER, THE APPEAL WAS DISMISSED BY THE C IT(A) ON THE GROUND THAT DESPITE AVAILING OF TWO OPPORTUNITIES, THE ASSESSEE WAS STI LL FOUND TO SEEK ANOTHER ADJOURNMENT HOLDING AS UNDER :- IN VIEW OF THESE CONTROLLING FACTS AND AS SUFFICIE NT OPPORTUNITY HAS ALREADY BEEN ALLOWED TO THE APPELLANT AND APPELLANT HAS NOT CONS IDERED IT NECESSARY TO ENTER APPEARANCE AND DEFEND THE CASE THE PENDING APPEAL I S DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND THE IMPUGNED ORDER OF ASSESSMENT PASSED BY THE LD. A.O. 7. CONSIDERING THE SUBMISSIONS OF THE PARTIES BEFOR E THE BENCH, I AM OF THE VIEW THAT THE IMPUGNED ORDER CANNOT BE UPHELD AS THE STATUTOR Y REQUIREMENT SET OUT IN SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 HAVE NOT BEEN MET. IT IS SEEN THAT NEITHER THE LD. COMMISSIONER HAS CARED TO ADDRESS THE POINT S FOR DETERMINATION WHICH AROSE FOR HIS CONSIDERATION NOR THE REASONS FOR HIS DECISION TO ACCEPT OR REJECT THE CLAIM. ACCORDINGLY, IN VIEW OF THIS PATENT AND OBVIOUS DEF ICIENCY IN THE IMPUGNED ORDER IT IS SET- ASIDE TO ADDRESS THIS STATUTORY DEFICIT. THE ISSUE S ARE RESTORED BACK TO THE FILE OF THE LD. COMMISSIONER WITH A DIRECTION TO PASS A SPEAKING OR DER WHICH IS IN CONFORMITY WITH THE STATUTORY MANDATE AFTER GIVING THE ASSESSEE A REAS ONABLE OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH DECEMBER, 2016. SD/- /- (A. N. MISHRA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER * SUJEET/AMIT KUMAR* 3 ITA NO.4987/DEL/2016 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI