Gangeshwari Metals Pvt. Ltd., New Delhi V. ITO, Ward-11(3), New Delhi

ITA 5494/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2475 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 23-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI FRIDAY-C BENCH, NEW DELHI ) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER STAY APPLICATION NO. 204/DEL/2019 ( IN ITA NO. 5494/DEL/2018) AND ITA NO. 5494/DEL/2018 ASSTT. YEAR : 2014-15 GANGESHWARI METALS PVT. LTD. VS. ITO, WARD 11(3), C/O SANDEEP SAPRA, ADV. NEW DELHI C-763, NEW FRIENDS COLONY, NEW DELHI 25 (PAN: AABCG4856A) ( APPLICANT) ( RESPONDENT ) APPLICANT BY : SH. SANJEEV SAPRA, FCA RESPONDENT BY : SH. SL ANURAGI, SR. DR ORDER PER H.S. SIDHU, JM THIS STAY APPLICATION U/S 35A OF THE INCOME-TAX APPE LLATE TRIBUNAL RULES, 1963 HAS BEEN PREFERRED BY THE ASSESSEE , SEEKING STAY OF BALANCE OUTSTANDING DEMAND IN DISPUTE. LD. COUNSE L OF THE ASSESSEE HAS REITERATED THE REASONS GIVEN IN THE STAY APPLICA TION AND ALSO STATED THAT OUT OF TOTAL DISPUTED INCOME TAX DEMAND OF RS. 1,51,51,259/- AND PAID 15% ON 27.2.2017 I.E RS. 22,7 5,000/- AND ACCORDINGLY BALANCE INCOME TAX DEMAND OF RS. 1,28,7 6,259/-. 2 HOWEVER, AT THE TIME OF HEARING, BOTH THE PARTIES AGREE D THAT LD. CIT(A) HAS DECIDED THE CASE OF THE ASSESSEE EXPARTE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THEREFORE, T HE MAIN APPEAL MAY BE DECIDED TODAY ITSELF. 2. THE GROUNDS RAISED IN THE MAIN APPEAL READ AS UNDE R:- I) THAT THE APPELLANT CO. WAS PREVENTED BY SUFFICIE NT CAUSE IN NOT COMPLYING TO THE NOTICES OF HEARING ISSUED BY TH E LD. CIT(A) AND THEREFORE, THE MATTER DESERVES TO BE RESTORED BACK TO THE FILE OF THE LD. CIT(A). II) THAT THE AO WAS UNJUSTIFIED IN NOT GRANTING ADJ OURNMENT ON 9.12.2016 SO AS TO ENABLE THE ASSESSEE CO. TO PRODUC E THE BOOKS OF ACCOUNTS ON THE NEXT DATE OF HEARING AND THEREFORE, THE EXPARTE ASSESSMENT ORDER AS PASSED U/S. 144(1) READ WITH SETION 145(3) OF THE ACT IS ILLEGAL AS PRINCIPLES OF NATURAL JUSTICE HAD BEEN VIOLATED. III) THAT WITHOUT PREJUDICE TO ABOVE GROUNDS, THE AO WAS NOT JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNTS U/S. 14 5(3) OF THE ACT THEREBY MAKING AN ADDITION OF RS. 3,21,05,7 20/- TO THE MANUFACTURING / TRADING RESULTS. AT ANY RATE, THE ADDITION AS MADE IS VERY EXCESSIVE. IV) THAT THE ADDITION OF RS. 29,50,000/- AS MADE U/S . 68 OF THE ACT ON ACCOUNT OF FRESH LOAN RAISED DURING THE YEAR IS ARBITRARY, UNJUST AND ILLEGAL. AT ANY RATE, WITHOUT PRE JUDICE, THE ADDITION AS MADE IS VERY EXCESSIVE. V) THAT THE APPELLANT RESERVES ITS RIGHTS TO ADD, AMEN D / MODIFY THE GROUNDS OF APPEAL. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE AUT HORITIES BELOW. WE FIND THAT AO HAS PASSED THE EXPARTE ORDER DATED 13.12. 2016 U/S. 144(1) RED WITH SECTION 145(3) OF THE ACT AND SIMILA RLY, THE LD. CIT(A) HAS ALSO PASSED THE EXPARTE ORDER DATED 30.5.2018 BY ONLY UPHOLDING THE ORDER OF THE AO AND DID NOT PASS A SPEAKING ORDER , WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. KEEPING IN VIEW OF THE FACTS AND 3 CIRCUMSTANCES OF THE CASE, THE ISSUES INVOLVED IN T HE MAIN APPEAL NO. 5494/DEL/2018 (AY 2014-15) ARE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS A SPEAKING ORDER. THE ASSESSEE T HROUGH HIS COUNSEL IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 03.04.2019 AT 10.00 AM FOR HEARING AND SUBSTANTIATE ITS CLAIM BEFORE HIM AND PRODUCE ALL THE RELEVANT EVIDENCES AND DID NOT TAKE A NY UNNECESSARY ADJOURNMENT. SINCE THE DATE HAS BEEN PRONOUNCED IN T HE OPEN COURT, THERE IS NO NEED TO SEND THE NOTICES TO THE PARTIES FOR THE HEARING. SINCE THE ISSUES INVOLVED IN THE MAIN APPEAL HAS BE EN SET ASIDE TO THE FILE OF THE CIT(A) TO DECIDE THE SAME AFRESH, IN THE AFORESAID MANNER, HENCE, THE STAY APPLICATION FILED BY THE ASSESSEE H AS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED AS SUCH. 4. IN THE RESULT, THE ASSESSEES STAY APPLICATION ST ANDS DISMISSED AND MAIN APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 08-03-2019. SD/- SD/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 08/03/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. DIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES