ITO, New Delhi V. M/s. Shiv Engineering Co. Pvt. Ltd., New Delhi

ITA 5071/DEL/2013

• Counselvise Citation: 507120114 RSA 2013
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 21-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 02-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Non compliance

Judgement Text

ITA NO. 5071/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. N O. 5071 /DEL/201 3 A.Y. : 2010-11 INCOME TAX OFFICER, WARD 8(2), ROOM NO. 197A, CR BUILDING, NEW DELHI 110 002 VS. M/S SHIV ENGINEERING CO. PVT. LTD., 266, OKHLA INDUSTRIAL ESTATE, PHASE-III, NEW DELHI 110 002 (PAN:- AABCS3600A) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. RAKESH KUMAR, SR. DR ASSESSEE BY : NONE DATE OF HEARING : 2 DATE OF HEARING : 2 DATE OF HEARING : 2 DATE OF HEARING : 21 11 1- -- -8 88 8- -- -2014 2014 2014 2014 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 22 2222 22- -- -8 88 8- -- -2014 2014 2014 2014 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 REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XI, NEW DE LHI DATED 10.6.2013 PERTAINING TO ASSESSMENT YEAR 2010-11 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER: - 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS. 20,28,801/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF ADJUSTED BUSINESS LOSS. ITA NO. 5071/DEL/2013 2 2. THE APPELLANT CRAVES TO AMEND, MODIFY, ALTER, AD D OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE O R DURING THE HEARING OF THIS APPEAL. 3. IN THIS CASE THE NOTICE OF HEARING WAS ISSUED T O BOTH THE PARTIES FOR 26.2.2014 AND ON THE REQUEST OF THE RE VENUE THE CASE WAS ADJOURNED FOR 21.8.2014. ON 21.8.2014, NEITHE R THE ASSESSEE AND HIS AUTHORISED REPRESENTATIVE ATTENDED THE HEARING NOR ANY REQUEST FOR ADJOURNMENT HAS BEEN FILED. IN VIEW O F THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE MATTER AGAIN AND AGA IN. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE APPEAL IN D ISPUTE MAY BE DECIDED EXPARTE ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RELEVANT RECORDS ON RECORD. 4. AFTER HEARING THE LD. DR AND PERUSING THE ORDER S PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORD ER DATED 10.6.2013 PASSED BY THE LD. FIRST APPELLATE AUTHORI TY, WE HAVE SEEN THAT DURING THE HEARING BEFORE THE LD. CIT(A), NEIT HER THE ASSESSEE NOR THE AO APPEARED AND THE LD. CIT(A) HAS PASSED EXPARTE ORDER BY WAY OF PARTLY ALLOWING THE APPEAL OF THE ASSESS EE, DESPITE NON APPEARANCE FROM BOTH THE PARTIES. ITA NO. 5071/DEL/2013 3 5. FOR THE SAKE OF CONVENIENCE THE RELEVANT FINDI NG GIVEN BY THE FIRST APPELLATE AUTHORITY IN HIS ORDER VIDE PAGES 2 TO 3 IS REPRODUCED BELOW:- THE APPELLANT WAS GIVEN AN OPPORTUNITY TO APPEAR A ND PRESENT ITS CASE DURING THE APPELLATE PROCEEDINGS VIDE NOTICE OF HEARING DATED 26.4.2013 TO ATTEND ON 27.5.2013. NO ONE ATTENDED ON THE FIXED DATE ON B EHALF OF THE APPELLANT. ANOTHER NOTICE DATED 28.5.2013 WA S ISSUED TO THE APPELLANT TO ATTEND ON 4.6.2013. HOWE VER, AGAIN THE SAME WAS NOT COMPLIED WITH BY THE APPELLA NT. NOTICES WERE ISSUED ON THE ADDRESS : M/S SHIV ENGINEERING CO. PVT. LTD, 266, OKHLA INDUSTRIAL EST ATE, PHASE-II, NEW DELHI 110 020, WHICH IS THE ADDRESS GIVEN IN THE FORM NO. 35, FILED BY THE APPELLANT. THE N OTICES WERE NOT RETURNED BACK. THEREFORE, IT IS PRESUMED T HAT THEY WOULD HAVE BEEN SERVED. THE APPELLANT IS NOT COMPLYING TO THE NOTICES ISSUED. IN VIEW OF THE NON COMPLIANT ATTITUDE OF THE APPELLANT, I AM NOT INCL INED TO GRANT ANY FURTHER OPPORTUNITY TO THE APPELLANT. TH E CASE IS BEING COMPLETED EXPARTE, ON THE BASIS OF THE DOCUMENTS ON RECORD. ITA NO. 5071/DEL/2013 4 AFTER CONSIDERING ALL DOCUMENTS ON RECORD, I SHALL NOW TAKE UP THE VARIOUS GROUNDS OF APPEAL. GROUND NO. 1 IS GENERAL. GROUNDS NO. 2 AND 3 ARE IN RESPECT OF ESTIMATING OF BUSINESS LOSS BY THE AO AT RS. 7,58,674/- AGAINST THE BUSINESS LOSS OF RS. 47,87,475/-. I HAVE READY THE ASSESSMENT ORDER AND I FIND THAT THE REASONING GIVEN BY THE AO FOR MAKING THE ADDITION IS WITHOUT ANY BASIS. THE ORDER IS TOO SK ETCHY AND BRIEF AND SHOWS LACK OF CLARITY. EVEN THOUGH T HE APPELLANT HAS NOT GIVEN ANY SUBMISSIONS, YET I FIND NO JUSTIFICATION FOR CONFORMING THE DISALLOWANCE MADE BY THE AO. THE LOSS CLAIMED BY THE APPELLANT AT RS. 47,87 ,475/- IS THEREFORE, ALLOWED. THE GROUNDS OF APPEAL ARE R ULED IN FAVOR OF THE APPELLANT. GROUND NO. 4 IS IN RESPECT OF ADDITION OF RS. 22,00 0/- U/S. 40A(IA). SINCE NO EVIDENCE HAS BEEN PRODUCED B EFORE ME BY THE APPELLANT, I CONFIRMED THE ADDITION OF R S. 22,000/-. THE GROUND OF APPEAL IS RULED AGAINST TH E APPELLANT. ITA NO. 5071/DEL/2013 5 6. AFTER GOING THROUGH THE AFORESAID FINDINGS GIVE N BY THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS NOT GIVEN SUFFICIENT OPPOR TUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM AS WELL THE LD. AO TO CONTROVERT THE ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL BEFORE HIM. 7. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS . WE DRAW SUPPORT FROM SECTION 250(2)(B) OF THE INCOME TAX AC T, 1961 AND FOR THE SAKE OF CONVENIENCE THE AFORESAID SECTION IS RE PRODUCED HEREUNDER:- (2) THE FOLLOWING SHALL HAVE THE RIGHT TO BE HEARD AT THE HEARING OF THE APPEAL (A) THE APPELLANT, EITHER IN PERSON OR BY AN AUTHORISED REPRESENTATIVE; (B) THE ASSESSING OFFICER, EITHER IN PERSON OR BY A REPRESENTATIVE. 7.1 IN VIEW OF THE ABOVE, IT IS AMPLY CLEAR THAT TH E APPELLANT AND ASSESSING OFFICER SHOULD BE PROVIDED AN OPPORTUNIT Y OF BEING HEARD, WHICH WAS NOT PROVIDED BY THE LD. CIT(A) TO THE PA RTIES. THEREFORE, THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLAT E AUTHORITY IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AS WE LL AS THE PROVISIONS OF SECTION 250(2)(B) OF THE I.T. ACT, 1961, THUS, IT IS LIABLE TO BE CANCELLED AND WE CANCEL THE IMPUGNED ORDER AND ALS O DIRECT THE LD. ITA NO. 5071/DEL/2013 6 FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUES IN D ISPUTE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING THE ADEQUATE OPP ORTUNITY TO BOTH THE PARTIES IN TERMS OF SECTION 250(2)(B) OF THE IN COME TAX ACT, 1961. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENU E STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/8/2014. SD/- SD/- [ [[ [S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA] ]] ] [ [[ [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 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. 5071/DEL/2013 7