M/s Gulshan Polyols Ltd., New Delhi V. Addl. CIT, New Delhi

ITA 5280/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2962 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 07-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: NA VIN KUMAR
• Keywords: Principle of natural justice
• Section: 14A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. N.K.SAINI, AM AND SH. K.N.CHARY, JM ITA NO. 5280/DEL./201 6 : ASSTT. YEAR : 2012-13 GULSHAN POLYOLS LTD., G-81, PREET VIHAR, NEW DELHI PAN: AABCG3954F VS ADDL. CIT RANGE-12 NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAATZ0343F APPELLANT BY : SH. NA VIN KUMAR, CA RESPONDENT BY : SH. ARUN KUMAR YADAV, SR. DR DATE OF HEARING : 20.12.2017 DATE OF PRONOUNCEMENT :26 .12.2017 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 09.08.2016 OF THE CIT(A)-4, NEW DELHI. FOLLOWING GROUNDS HAV E BEEN RAISED IN THIS APPEAL :- 1. THAT THE HONBLE ADDL. COMMISSIONER OF INCOME T AX IS WRONG AND UNJUSTIFIED BOTH IN LAW AND FACTS IN DISALLOWING OF REPAIR AND MAINTENANCE EXPENSES OF RS. 9,67,751/-. 2. THAT THE HONBLE ADDL. COMMISSIONER OF INCOME TA X IS WRONG AND UNJUSTIFIED BOTH IN LAW AND FACTS IN DISALLOWING RS . 42,165/- U/S 14A. ITA NO.5280/DEL/2016 2 3. THAT THE HONBLE ADDL. COMMISSIONER OF INCOME TA X IS WRONG AND UNJUSTIFIED BOTH IN LAW AND FACTS IN DISALLOWING OF PART DEDUCTION U/S 80IC IN RESPECT OF OTHER INCOME OF RS. 4,31,756/-. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSE SSEE FILED THE RETURN OF INCOME ON 27.09.2012 DECLARING TOTAL INCOME AT RS. 12,83,5 6,760/-. LATER ON THE CASE WAS SELECTED FOR SCRUTINY. THE AO MADE THE ADDITIO N OF RS. 7,46,213/- BY MAKING THE DISALLOWANCE OUT OF THE REPAIRS AND MAIN TENANCE AND ADDED RS. 42165/- BY MAKING THE DISALLOWANCE U/S 14A OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE AO ALSO M ADE CERTAIN OTHER DISALLOWANCES AND FRAMED THE ASSESSMENT AT AN INCOM E OF RS. 13,08, 35,522/- UNDER NORMAL PROVISIONS OF THE ACT AND AT AN INCOME OF RS. 21,37,14,140/- UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY OBSERVING IN PARA 2 OF THE IMPUGNED ORDER AS UNDER : 2. THE CASE WAS FIXED FOR HEARING ON 13.08.2015 BU T NONE APPEARED ON THAT DATE OR AFTER THAT. AGAIN THE CASE WAS FIXED F OR HEARING ON 29.12.2015 AND ONCE AGAIN NO ONE ATTENDED NOR FILED ANY ADJOUR NMENT APPLICATION. IT SEEMS THAT THE APPELLANT IS NOT INTERESTED IN PURSU ING THE MATTER, THEREFORE THE APPEAL IS DISMISSED. NOW, THE ASSESSEE IS IN APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET STATED THAT THE LD. CIT(A) WITHOUT GIVING PROPER OPPORTUNITY OF BEING H EARD TO THE ASSESSEE AND DISCUSSING THE ISSUES AGITATED BY THE ASSESSEE ON MERIT, DISMISSED THE APPEAL OF THE ASSESSEE. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) HAS NOT DISCUSSED THE ISSUES ON MERI T AND DISMISSED THE APPEAL IN LIMINE. HE SIMPLY STATED THAT CASE WAS FIXED FOR HE ARING ON 29.12.2015 AND DISMISSED THE APPEAL BY PASSING THE IMPUGNED ORDER ON 09.08.2016. BUT ITA NO.5280/DEL/2016 3 NOWHERE HE MENTIONED THAT NOTICE FOR HEARING ON THE SAID DATE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM. WE, THEREFORE, K EEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 26/12/2017). SD/- SD/- (K.N.CHARY) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26 / 12/2017 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.5280/DEL/2016 4 DATE INITIAL 1. DRAFT DICTATED ON 20.12.2017 2. DRAFT PLACED BEFORE AUTHOR 21.12.2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 26.12.2017 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.