Amit Sabharwal, Ghaziabad V. ITO, Ghaziabad

ITA 5413/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6893 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 23-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: ABHISHEK ANAND
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NO. 5413/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 5413/DEL/2012 A.Y. : 2009-10 SHRI AMIT SABHARWAL , C/O. M/S ASHOK RAJ & ASSOCIATES, 19, NAVYUG MARKET, 2 ND FLOOR, GHAZIABAD (PAN: ALYPS1816K) VS. INCOME TAX OFFICER, WARD-1(1), GHAZIABAD (APPELLANT ) (RESPONDENT ) ASSESSEE BY : DR. RAKESH GUPTA, ADV., SH. SOMIL AGARWAL, AD. & ABHISHEK ANAND, ADV. DEPARTMENT BY : SH. K.K. JAISWAL, DR DATE OF HEARING: 28-01-2016 DATE OF ORDER : 05-02-2016 ORDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD DAT ED 27.8.2012 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING CONCISE GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS. 21,40,567/- ON ACCOUNT OF DIFFERENCE BETWEEN GROSS RECEIPT OF PROFIT AND LOSS ACCOUNT AN D STATEMENT OF 26AS THAT TOO WITHOUT APPRECIATING THE FACTS AND CI RCUMSTANCES OF ITA NO. 5413/DEL/2012 2 THE CASE AND WITHOUT CONSIDERING THE SUBMISSIONS / EVIDENCES OF THE ASSESSEE. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO IN MAKING ADHOC / ESTIMATED DISALLOWANCE OF RS. 4,00,000/- ON ACCOUNT OF EXPENSES DEBITED IN PROFIT AND LOSS AC COUNT THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING. 3. THAT IN ANY CASE AND ANY VIEW OF THE MATTER, ACT ION OF THE LD. CIT(A) IN NOT REVERSING THE ACTION OF THE AO IN MAKING THE IMPUGNED ADDITION / DISALLOWANCE AND FRAMING THE IMPUGNED AS SESSMENT ORDER WHICH IS CONTRARY TO LAW AND FACTS, VOID AB I NITIO, BEYOND JURISDICTION, AND WITHOUT GIVING ADEQUATE OPPORTUNI TY OF HEARING, BY RECORDING INCORRECT FACTS AND FINDINGS AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF THE AO IN CHARGING INTEREST U/S. 234A, 234B, 234C A ND OF THE INCOME TAX ACT, 1961. 5. THAT THE APPELLANTS CRAVES THE LAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIE S ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT BEING REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE STATED THAT THE LD. CIT(A) WAS ERRED IN CONFIRMING THE ACTION OF AO IN MAKING THE ADDITION OF RS. 21,40,567/- ON ACCOUNT OF DIFFERENCE BETWEEN GR OSS RECEIPT OF PROFIT AND LOSS ACCOUNT AND STATEMENT OF 26AS THAT TOO WITHOUT APPRECIATING THE FACTS AND ITA NO. 5413/DEL/2012 3 CIRCUMSTANCES OF THE CASE AND WITHOUT CONSIDERING T HE SUBMISSIONS / EVIDENCES OF THE ASSESSEE. HE FURTHER STATED THAT LD. CIT(A) HAS ALSO ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF AO IN MAKING ADHOC / ESTIMATED DISALLOWANCE OF RS. 4,00,000/- ON ACCOUNT OF EXPENS ES DEBITED IN PROFIT AND LOSS ACCOUNT THAT TOO WITHOUT GIVING ADEQUATE OPPOR TUNITY OF HEARING. IT WAS FURTHER STATED THAT LD. CIT(A) WAS ERRED IN NOT REV ERSING THE ACTION OF THE AO IN MAKING THE IMPUGNED ADDITION / DISALLOWANCE AND FR AMING THE IMPUGNED ASSESSMENT ORDER WHICH IS CONTRARY TO LAW AND FACTS , VOID AB INITIO, BEYOND JURISDICTION, AND WITHOUT GIVING ADEQUATE OPPORTUNI TY OF HEARING, BY RECORDING INCORRECT FACTS AND FINDINGS AND THE SAME IS NOT S USTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS. IN VIEW OF THE ABOVE, HE REQUE STED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION WITH THE DIRECTIONS TO GIVE FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER THE SUBMISSION AND THE EVIDENCES FILED BY THE ASSE SSEE AND DECIDE THE ISSUE IN DISPUTE AFRESH. 4. ON THE CONTRARY, LD. DR OPPOSED THE AFORESAID R EQUEST OF THE LD. COUNSEL OF THE ASSESSEE. HE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND REQUESTED THAT THE SAME MAY BE UPHELD. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. AFTER GOING THROUGH THE RELEVANT DOCUMENTS AVAILABLE ON RECORD , WE ARE OF THE VIEW THAT ASSESSEE HAS THROUGHOUT MADE THE CONTENTION THAT AO HAS NOT GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND WITHOUT CONSIDERING THE SUBMISSIONS / EVIDENCES OF THE ASSESSEE, WHICH IS IN THE INTEREST OF NATURAL JUSTICE, IS VERY ESSENTIAL. THEREFORE, IN THE INTE REST OF NATURAL JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO D ECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING FULL OPPORTUNITY TO THE ASSES SEE OF BEING HEARD. THE AO IS ALSO DIRECTED TO CONSIDER THE SUBMISSIONS AND EVIDE NCES, IF ANY, TO BE SUBMITTED BY THE ASSESSEE, AFRESH AND DECIDE THE ISSUE IN DISPUTE IN ACCORDANCE WITH LAW. HOWEVER, THE ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE ITA NO. 5413/DEL/2012 4 SUBMISSIONS AND EVIDENCES TO THE AO, SO THAT AO MAY CONSIDER THE SAME, AS PER RULES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/2/2016. SD/- SD/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 05-02-2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR