M/s Gujrat Golden Transports Co., V. The ITO-2(3),

ITA 542/IND/2004

• Counselvise Citation: 54222714 RSA 2004
• Duration Of Justice: 6 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 20-10-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 11-06-2004
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Principle of natural justice
• Section: 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 539 TO 546/IND/2004 A.YS. 1995-96 TO 2002-03 GUJRAT GOLDEN TRANSPORT COMPANY INDORE PAN AACFG0046J ... APPELLANT VS INCOME TAX OFFICER 2(3), INDORE ... RESPONDENT APPELLANT BY : SHRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING : 6.2.2012 DATE OF PRONOUNCEMENT : 6.2.2012 O R D E R PER JOGINDER SINGH THE ASSESSEE IS AGGRIEVED BY THE DIFFERENT ORDER O F LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ALL DA TED 2 16.3.2004 ON THE COMMON GROUND THAT THE LEARNED LD. FIRST APPELLATE AUTHORITY ERRED IN CONFIRMING THE STATUS OF AOP AS HELD BY THE ASSESSING OFFICER AGAINST THE STATUS OF THE FIRM, CLAIMED BY THE ASSESSEE ESPECIALLY WHEN THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DECID ING THAT THE STATUS OF THE FIRM WAS CLAIMED ON THE BASIS OF FORGED DOCUMENTS OVERLOOKING THE SUBMISSIONS OF THE ASSESS EE AND THE FACTUAL POSITION CONTAINED IN THE IMPUGNED APPE ALS IGNORING THE MATERIAL AVAILABLE ON RECORD AND FURTHER ERRED IN CONFIRMING THE DISALLOWANCES OF COMMISSION AND INTEREST PAID T O THE PARTNERS RESPECTIVELY. 2. DURING HEARING OF THESE APPEALS, WE HAVE HEARD S HRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL, LEARNED COUNSEL S FOR THE ASSESSEE AND SHRI ARUN DEWAN, LEARNED SENIOR DR. T HE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE SUBMISSIONS PUT-FORTH BY THE ASSESSEE WERE NOT APPRECIATED WITH OUT MAKING INQUIRY IN REACHING TO A PARTICULAR CONCLUSION. OU R ATTENTION WAS INVITED BY THE LEARNED COUNSEL FOR THE ASSESSEE TO THE ASSERTION MADE BEFORE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) TO 3 THE EFFECT THAT THE PARTNERSHIP DEED WAS EXECUTED O N GENUINE STAMP PAPERS. A STRONG PLEA WAS RAISED THAT EVEN T HE ASSESSING OFFICER DID NOT PROVIDED ADEQUATE OPPORTU NITY OF HEARING SINCE THE ASSESSMENT PROCEEDINGS WERE CONSE QUENT TO THE ORDER U/S 263 OF THE ACT WHICH WAS FIXED FOR HE ARING FOR THE FIRST TIME ON 14.12.2001 AND THE ASSESSMENT WAS FRA MED BEHIND THE BACK OF THE ASSESSEE ON THE BASIS OF CER TAIN INQUIRIES CLAIMED TO BE MADE ON 22.3.2002. IT WAS FURTHER SUBMITTED THAT THE STAMP PAPERS ON WHICH THE PARTNE RSHIP DEED WAS EXECUTED WERE QUITE GENUINE AND THE SAME WERE C LAIMED TO BE PRINTED AT INDIA SECURITY PRESS, NASIK ON 22. 4.1994 AND WERE DESPATCHED FOR SALE ON 9.5.1994. IT WAS ALSO POINTED THAT DUE TO TYPING MISTAKE OF THE TYPIST THE DATE WAS WR ONGLY MENTIONED AS 31.3.1994, THEREFORE, THE SAME CANNOT BE THE BASIS FOR TREATING THE FIRM AS NON-GENUINE. ON THE OTHER HAND, THE LEARNED SENIOR DR DEFENDED THE IMPUGNED ORDERS BY SUBMITTING THAT SINCE THE STAMP PAPERS IN QUESTION WERE NOT IN EXISTENCE AS ON 31.3.1994, HOW THE DEED WAS DRAFTED . 4 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS IN THE BUSINESS OF COMMISSION FROM TRANSPORTATION, FURNISHED ITS RETURN ON THE DATES A S MENTIONED IN THE RESPECTIVE ASSESSMENT ORDER. AS A RESULT OF OR DER U/S 263 OF THE ACT PASSED BY THE LEARNED COMMISSIONER, THE PROCEEDINGS WERE STARTED AND ORDERS WERE FRAMED U/S 143(3)/263 OF THE ACT ASSIGNING THE STATUS OF AOP T O THE ASSESSEE AGAINST THE CLAIMED STATUS OF FIRM. THE S UM AND SUBSTANCE OF THE ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS TWOFOLD, FIRSTLY, DUE OPPORTUNI TY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE AND SECONDLY , THE FACTS WERE NOT PROPERLY APPRECIATED BY THE ASSESSING OFFI CER. A PLEA WAS ALSO RAISED THAT THE DECISION WAS TAKEN BY THE ASSESSING OFFICER BEHIND THE BACK OF THE ASSESSEE AND THE INQ UIRIES, IF ANY, CLAIMED TO BE MADE ON 22.3.2002 SHOULD HAVE BE EN CONFRONTED TO THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO CLAIMED THAT THE STAMP PAPERS WHICH WERE USED FOR ENTERING INTO A PARTNERSHIP DEED/REVISED PARTNE RSHIP DEED 5 ARE QUITE GENUINE. IN VIEW OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT NO PERSON SHOULD BE CONDEMN ED UNHEARD AND THE INQUIRY, IF ANY, MADE BY THE DEPART MENT ON 22.3.2002 SHOULD HAVE BEEN CONFRONTED TO THE ASSESS EE. SO FAR AS THE ARGUMENT THAT THE STAMP PAPERS WERE GENU INE, IT WAS THE DUTY OF THE ASSESSING OFFICER TO MAKE INQUIRIES REGARDING THEIR GENUINENESS FROM THE CONCERNED PRINTING PRESS . FOR DISCUSSION SAKE, EVEN IF SUCH STAMP PAPERS ARE NON- GENUINE, IT WAS THE DUTY OF THE ASSESSING OFFICER TO MAKE THE I NQUIRIES ABOUT THEIR GENUINENESS FROM THE CONCERNED STAMP VE NDOR. SIMPLY ON THE BASIS OF TYPING MISTAKE OF THE TYPIST , NO ADVERSE VIEW SHOULD HAVE BEEN TAKEN, THEREFORE, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, WE REMAND THESE APPEA LS TO THE FILE OF THE ASSESSING OFFICER FIRSTLY TO DECIDE THE GENU INENESS OF THE STAMP PAPERS AFTER MAKING DUE INQUIRIES AND SECONDL Y THE ASSESSEE BE GRANTED ADEQUATE OPPORTUNITY OF BEING H EARD. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM, CONSEQUENTLY, ALL THESE APP EALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 6 FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED F OR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESE NCE OF LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 6.2.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6.2.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-