Vibrant Foods P.Ltd, New Delhi V. ITO, Ward-17(2), New Delhi

ITA 5131/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5447 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 27-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRTI SUNKRATYAYAN
• Assessee Lawyers: G S KOHLI
• Keywords: Depreciation; Opportunity of being heard; Additional evidence; Set aside
• Section: 22; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) (THROUGH VIDEO CONFERENCE ) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.5131/DEL./2018 ASSESSMENT YEAR : 2007-08 VIBRANT FOODS P. LTD. VS. ITO, A-25, MAYAPURI, PHASE-II, WARD-17(2) NEW DELHI-110064 NEW DELHI (PAN :AACCV1355J) (APPELLANT) (RESPONDE NT) ASSESSEE BY : SH. G.S. KOHLI, CA REVENUE BY : MS. KIRTI SUNKRATYAYAN, SR. DR DATE OF HEARING : 08.09.2021 DATE OF ORDER : 22. 09.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, VIBRANT FOODS P. LTD., NEW DEL HI (HEREINAFTER REFERRED TO AS THE ASSESSEE), BY FILING THE PRESE NT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 13.04.2018 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-33, NEW DELHI, QUA THE ASSESSMENT YEAR 2007-08 ON THE GROUNDS INTER ALIA T HAT :- 1. THE ASSESSMENT AS WELL AS APPELLATE ORDERS ARE UNLAWFUL, ILLEGAL AND ARE AGAINST THE NATURAL LAW O F JUSTICE. 2. THE LEARNED CIT(APPEALS) HAD ERRED IN DETERMININ G THE ESTIMATED INCOME ON IMAGINARY AND ARBITRARY FIGURES . ITA NO.5131/DEL./2018 2 3. THE LEARNED CIT (APPEALS) HAS ERRED IN ESTIMATIN G THE INCOME @ 50% OF DECLARED TURNOVER OF RS. 6596,450/- WITHOU T PLACING ANY MATERIAL OR INSTANCE IN THIS RESPECT. THAT WITHOUT PREJUDICE TO THE FACTS THAT SUCH RATE OF NET PROFIT IS NOT AVAILABLE IN ANY BUSINESS, THE ACCOUN TS OF THE APPELLANT ARE AUDITED ACCOUNTS WHERE THE EXPENSES C LAIMED LIKE RENT, DEPRECIATION, INTEREST EVIDENTLY PROVES THERE IS A LOSS AND FURTHER SUCH LOSS HAVE BEEN ACCEPTED IN THE EARLIER AS WELL AS IN THE SUBSEQUENT YEARS, AN ESTIMATION WAS AT VERY HIG HER SIDE. 4. THAT LEARNED CIT(APPEALS) HAS FAILED TO GIVE ANY COMMENTS ON CARRIED FORWARD OF RS. 32,30,495/- WHIC H WAS NOT ALLOWED/WORKED OUT IN ASSTT. ORDER. 5. THAT THE APPELLANT CRAVES THEIR RIGHT TO AMEND, DELETE OR ADD ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER FRAMED THE ASSESSMENT AT THE INCOME OF RS. 50,00,000/- ON ESTIMATION BASI S U/S 144 OF THE ACT ON FAILURE OF THE ASSESSEE PUT IN APPEARANCE TO EXPLAIN THE RETURN OF INCOME DURING SCRUTINY PROCEEDINGS. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A ) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS CHALLENGED ASSESSMENT ORDER AT THE INCOME OF RS. 50,00,000/- FROM THE BUSINESS ON THE BASIS OF E STIMATION U/S 144 OF THE ACT. IT IS A MATTER OF RECORD THAT DURIN G THE FIRST APPELLATE PROCEEDINGS, ASSESSEE HAD MOVED AN APPLICATION UNDE R RULE 46 OF THE INCOME TAX RULES ( FOR SHORT RULES) FOR BRINGIN G ON RECORD ITA NO.5131/DEL./2018 3 CERTAIN ADDITIONAL EVIDENCES, WHICH HAS BEEN REJECT ED BY THE LD. CIT(A) AFTER CALLING REPORT FROM THE ASSESSING OFFI CER ON THE GROUND THAT HE [CIT(A)] IS NOT IN AGREEMENT WITH T HE REASONS OF ADMISSION OF ADDITIONAL EVIDENCES SOUGHT TO BRING O N RECORD. 5. FIRST OF ALL, WE ARE OF THE CONSIDERED VIEW THAT WHEN ASSESSMENT HAS BEEN FRAMED U/S 144 OF THE ACT REJEC TING APPLICATION FOR LEADING ADDITIONAL EVIDENCES ON UNS USTAINABLE GROUND THAT LD. CIT(A) IS NOT AGREED WITH THE REAS ONS FOR LEADING ADDITIONAL EVIDENCE BY THE ASSESSEE IS NOT SUSTAIN ABLE IN THE EYES OF LAW. WHEN THE DOCUMENTS RELIED UPON BY THE ASSES SEE DURING FIRST APPELLATE PROCEEDINGS HAVE NOT BEEN TAKEN ON RECORD/ CONSIDERED BY THE LD. CIT(A) DECIDING THE APPEAL EV EN ON MERIT DOES NOT SERVE THE CAUSE OF JUSTICE. 6. SINCE THE ISSUE INVOLVED IN THIS CASE HAS BEEN D EALT BOTH BY AO AS WELL AS LD. CIT(A) ON THE BASIS OF ESTIMATION WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE, THE IMPUGNED ORDER PASSED BY LD. CIT(A) IS NOT SUSTAINA BLE, HENCE, SET ASIDE BY REMITTING BACK TO LD. CIT(A) TO DECIDE AFR ESH AFTER ENTERTAINING ALL THE ADDITIONAL EVIDENCE SOUGHT TO BE LED BY THE ASSESSEE VIDE APPLICATION DATED 19.04.11 UNDER RULE 46A BY PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. ITA NO.5131/DEL./2018 4 CONSEQUENTLY, PRESENT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF SEPTEMBER, 2021. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 22 ND DAY OF SEPTEMBER, 2021 BINITA COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.