M/s Fastway Transmission (P) Ltd., Chandigarh V. ACIT, CC-II, Chandigarh

ITA 572/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1296 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-12-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 01-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH .., ! '# #$ %, & '( BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M ITA NO. 572/CHD/2018 ASSESSMENT YEAR : 2013-14 M/S FASTWAY TRANSMISSION PVT. LTD. H.NO. 5804, SECTOR 38-W CHANDIGARH ASSTT. CIT CENTRAL CIRCLE-II CHANDIGARH PAN NO: AABCF1854B APPELLANT RESPONDENT !' ASSESSEE BY : SHRI ASHWANI KUMAR, CA #!' REVENUE BY : SHRI CHANDRAJIT SINGH, CIT DR $ %! & DATE OF HEARING : 04/12/2019 '()*! & DATE OF PRONOUNCEMENT : 04/12/2019 ')/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 19/02/2018 BY THE LD. CIT(A)-3, GURGAON. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-3 ,GURGAON HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE EX-PARTE, WIT HOUT AFFORDING SUFFICIENT AND REASONABLE OPPORTUNITY OF HEARING. 2. THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ORDE R OF THE ASSESSING OFFICER THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON THE LEASEHOLD ASSETS, WHICH IS NOT CORRECT IN VIEW OF THE CLARIFICATORY DEPN. CHART FILED DURING THE COUR SE OF PROCEEDINGS U/S 154. 3. THAT NO OBJECTION TO THE DISALLOWANCE OF DEPRECIATI ON AS ALLOWED BY THE ASSESSING OFFICER HERSELF TO THE TUNE OF RS. 16,18,14,843/- W HILE FRAMING THE ASSESSMENT, HAD BEEN GIVEN SINCE THE SAME WAS NEVER DEMANDED OR CLAIMED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT THE OBSERVATION OF THE ASSESSING OFFICER THAT THE DEPRECIATION WAS ALLOWED TWICE, IS AGAINST THE FACTS AND CIRCUMSTANCES AS EX PLAINED DURING THE COURSE OF PROCEEDINGS U/S 154 WITH THE HELP OF DETAILED DEPRE CIATION CHART. 2 5. THAT THE DEPRECATION TO THE TUNE OF RS.24,73,54,396 /- AS CLAIMED IN THE COMPUTATION OF INCOME, WHILE FILING THE RETURN OF I NCOME READ WITH DEPN. CHART AS FILED DURING THE COURSE OF PROCEEDINGS U/S 154 AND WHICH PROVES THAT THERE IS NO DOUBLE CLAIM OF DEPRECIATION AS BEING ALLEGED AND THE OBSERVATIO NS OF THE CIT(A) IN THIS REGARD, ARE TOTALLY UNFOUNDED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. VIDE GROUND NO. 1 THE GRIEVANCE OF THE ASSESSEE REL ATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT AFFORDING SUFFICIENT A ND REASONABLE OPPORTUNITY OF BEING HEARD. 4. FACTS RELATED TO THE CASE IN BRIEF ARE THAT THE ASSE SSMENT IN THIS CASE WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) VIDE ORDER DT. 18/03/2016 AT A TOTAL INCOME OF RS. 21,19,85,703/- AND THE CLAIM FOR DEPRECIATION OF RS. 16,18,14,843/- WAS ALLOWED. SUBS EQUENTLY THE A.O. FOUND THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON HEAD-ENDS AND STBS UNDER FINANCE LEASE ARRANGEMENT OF RS. 16,18,14,843/- WAS ALLOWED AS A DE DUCTION WHICH WAS A MISTAKE APPARENT FROM THE RECORD. HE ISSUED NOTICE UNDER SECTI ON 154 OF THE ACT, TO THE ASSESSEE. THE A.O. MADE THE ADDITION OF THE IMPUGNED AM OUNT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EXPARTE BY OBSERVING THAT NOBODY APP EARED IN RESPONSE TO THE VARIOUS NOTICES ISSUED FOR HEARING AND THAT THE NOTICES WERE ISSUED FOR HEARING ON 19/01/2018 AND 08/02/2018, HOWEVER THERE WAS NO RESPONSE WHATSOEVER FROM THE ASSESSEE APART FROM SEEKING ADJOURNMENTS. LD. CIT(A) CONFIRMED THE VIEW TAKEN BY THE A.O. BY PASSING THE IMPUGNED ORDER EXPARTE. 6. NOW THE ASSESSEE IS IN APPEAL. 7. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NOTI CE FOR HEARING WAS NOT SERVED UPON THE ASSESSEE, THEREFORE, THE IMPUGNED ORDER PASS ED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD WAS AGAINST THE PRI NCIPLES OF NATURAL JUSTICE. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE I MPUGNED ORDER PASSED BY THE LD. CIT(A). 3 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE I T IS AN ADMITTED FACT THAT THE IMPUGNED ORDER WAS PASSED BY THE LD. CIT(A) EXPARTE. HE SIMPLY MENTIONED THAT THE NOTICES WERE ISSUED FOR HEARING ON 19/01/2018 AND 08/02/ 2018 , HOWEVER THERE WAS NO RESPONSE WHATSOEVER APART FROM SEEKING ADJOURNMENTS. FR OM THE AFORESAID OBSERVATIONS IT IS CLEAR THAT THE LD. CIT ON THE ONE HAND SAID THAT THERE WAS NO RESPONSE ON THE OTHER HAND HE SAID THAT THE ASSESSEE SOUGHT ADJOURNM ENT. THIS OBSERVATION IS CONTRADICTORY. MOREOVER, THE LD. CIT(A) NOWHERE MENTIONE D THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . 10. WE THEREFORE KEEPING IN VIEW THE PRINCIPLE OF NATUR AL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 04/12/2019 ) SD/- SD/- #$ % .., (SANJAY GARG ) ( N.K. SAI NI) & '(/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 04/12/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR