M/s Mikundrai Dsitributors, Nagpur V. ITO Ward 4(2), Nagpur

ITA 53/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93372 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 08-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D RAVI KUMAR
• Assessee Lawyers: S C THAKAR; C J THAKAR
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO . 53/NAG/2013 ASSESSMENT YE AR : 2006-07. M/S MUKUNDRAI DISTRIBUTORS, THE INCOME-TAX OFICER, SHOP NO.31/65-66, G.M. MARKET, V/S. WARD-4(2), NAGPUR. GANDHIBAGH, NAGPUR. PAN AACFM0142M. APPELLANT RESPONDENT. APPELLANT BY : SHRI C.J. THAKAR & SHRI S.C.THAKAR. RESPONDENT BY : SH RI D. RAVI KUMAR. DATE OF HEARING - 30-04-2015 DATE OF ORDER - 15 TH MAY, 2015 O R D E R PER SHRI SHAMIM YAHYA, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(APPEALS)- 19, MUMBAI (CAMP :NAGPUR) DATED 07-11-2012 AND PERT AINS TO ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) GROSSLY ERRED IN LAW AND FACT IN PASSING THE DISMISSAL ORDER IN APP EAL IN AS MUCH AS NO SUFFICIENT AND PROPER OPPORTUNITY OF HEARING WAS A LLOWED. THE ORDER PASSED BE KINDLY BE SET-ASIDE. 2 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED LOWER AUTHORITIES ERRED IN LAW AND FACT IN ESTIMATING TH E INCOME AND REJECTING THE BOOKS OF ACCOUNTS IN AS MUCH AS REGULAR BOOKS OF A CCOUNTS DULY SUPPORTED WITH QUANTITATIVE DETAILS WERE MAINTAINED AND PROD UCED AND STOCK DETAILS WERE FILED BEFORE ASSESSING OFFICER AND NO DEFECTS WERE POINTED OUT. THE BOOK RESULTS BE KINDLY ACCEPTED. 3. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEA L THE ADDITION OF ` .6,29,172/- BEING DIFFERENCE IN G.P. % IS WITHOUT A NY BASIS IT BE DELETED. 4. THAT AT ANY RATE THE ADDITION OF ` .6,29,172/- UNDER THE HEAD DIFFERENCE IN G.P. % IS VERY MUCH ON HIGH SIDE, IT BE MODIFIED C ONSIDERABLY TAKING INTO CONSIDERATION FULL FACTS OF THE CASE. 2. IN THIS CASE THE ASSESSING OFFICER PASSED AN ORD ER UNDER SECTION 143(3) OF THE I.T. ACT. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE GROSS PROFIT SHOWN BY THE ASSESSEE. HE FOUND TH AT SINCE THE ASSESSEES GROSS PROFIT WAS NOT ACCEPTABLE THE TRADING RESULTS FURNI SHED BY THE ASSESSEE WERE TO BE REJECTED. HE COMPUTED THE GROSS PROFIT AT THE RATE O F 5% AS AGAINST 3.34% DECLARED BY THE ASSESSEE. 3 AGAINST THE ABOVE ORDER, THE ASSESSEE APPEALED B EFORE THE LEARNED CIT(APPEALS) LEARNED CIT(APPEALS) NOTED THAT INSPIT E OF SEVERAL OPPORTUNITIES THE ASSESSEE DID NOT APPEAR. LEARNED CIT(APPEALS) OPINE D THAT THE APPEAL WAS LIABLE TO BE DISMISSED FOR NON-PROSECUTION. LEARNED CIT(AP PEALS) ALSO CONSIDERED THE MERITS. SHE REPRODUCED THE OPERATING PORTION OF ASS ESSING OFFICERS ORDER AND IN VIEW OF THE NON ATTENDANCE OF THE ASSESSEE, UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. AGAINST THE ABOVE ORDER, ASSESSEE HAS APPEALED B EFORE US. WE NOTE THAT IT IS THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASS ESSEE THAT THE CONCERNED CIT(APPEALS) HAD COME ON A CAMP AT NAGPUR AND THE A SSESSEE HAD RECEIVED VERY 3 SHORT NOTICE FROM HER AND THAT ALSO ONLY ONE. HENCE HE SUBMITTED THAT THE ASSESSEE HAD NOT BEEN GRANTED ADEQUATE OPPORTUNITY. 5. PER CONTRA THE LEARNED D.R. RELIED UPON THE ORDE RS OF THE AUTHORITIES BELOW. 6. UPON CAREFUL CONSIDERATION WE NOTE THAT THE ASSE SSEES GRIEVANCE IS CORRECT THAT THE ASSESSEE HAS NOT BEEN GIVEN ADEQUATE OPPOR TUNITY BY THE CONCERNED CIT(APPEALS). FURTHER MORE WE FIND THAT THE LEARNED CIT(APPEALS) HAS NOT PROPERLY ADJUDICATED THE MERITS OF THE CASE. THE HONBLE APEX COURT IN THE CASE OF SAHARA INDIA (FIRM) V/S. CIT 300 ITR 403 HAS HELD THAT EVE N ADMINISTRATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. HE NCE IT WAS INCUMBENT ON THE LEARNED CIT(APPEALS) TO PASS A PROPER AND SPEAKING ORDER ON THE MERITS OF THE CASE. HENCE WE SET ASIDE THE ISSUE TO THE FILE OF T HE LEARNED CIT(APPEALS). THE ASSESSEE IS DIRECTED TO SUO MOTO APPEAR BEFORE THE LEARNED CIT(APPEALS) WITHIN 30 DAYS TO CANVAS THE APPEAL. REVENUE IS AT LIBERTY TO PROCEED AS PER LAW. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MAY, 2015. SD/- SD/- (MUKUL K. SHRAWAT) (SHAMIM YAHYA) JUDICIAL MEMBER. ACCOUNTANT MEMBER NAGPUR, DATED: 15 TH MAY, 2015. 4 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. T RUE COPY. BY ORDER ASSISTANT REGISTRAR, I TAT, NAGPUR WAKODE