Western Drilling Contractors Pvt. Ltd., Noida V. DCIT, Noida

ITA 5864/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6749 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-01-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 16-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 5864/DEL/2016 ASSESSMENT YEAR: 2012-13 WESTERN DRILLING CONTRACTORS VS. ITO, WARD 3(5), PRIVATE LIMITED, 5 TH FLOOR, AAYAKAR PLOT NO. 1A, SECTOR 16A, BHAWAN, SECTOR-24, NOIDA-201301 (UP) NOIDA-201301 (PAN: AAAFW5961A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RISHABH MALHOTRA, ADV . DEPARTMENT BY : SH. RAKESH KUMAR, SR. DR ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31.8.2016 OF THE LD. CIT(A)-I, NOIDA RELATING TO AS SESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UND ER:- 1.0 THAT THE LEARNED CIT(A) GROSSLY ERRED ON FACTS AND IN LAW IN PASSING THE IMPUGNED ORDER WITHOUT GIVING SUFFICIENT AND A PROPER OPPORTUNITY TO THE APPELLAN T TO BE HEARD. THE IMPUGNED ORDER IS PASSED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2.0 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE 2 ASSESSMENT OF INTEREST OF RS 27,82,217/- EARNED ON FIXED DEPOSITS PLACED AS MARGIN MONEY WITH BANK FOR ISSUE OF BANK GUARANTEE FOR OIL BLOCKS, AS INCOME. 3.0 WITHOUT PREJUDICE, ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRM ING THE ADDITION OF GROSS RECEIPTS OF INTEREST AS INCOM E. THE LD CIT(A) ERRED IN NOT ALLOWING DEDUCTION OF EXPENS E OF RS 49,07,818/- INCURRED DIRECTLY AND EXCLUSIVELY TOWARDS EARNING SUCH INTEREST INCOME. 4.0 THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) ERRED IN NOT ALLOWING TDS CREDIT OF RS 5,56,444/-. 5.0 THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) ERRED IN CONFIRMING THE INTEREST OF RS 2003 08/-, CHARGED UNDER SECTION 234B, OF THE ACT. 6.0 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E THE ORDER PASSED BY LD. CIT (A) IS BAD IN LAW. THE GROUNDS OF APPEAL TAKEN ARE WITHOUT PREJUDICE T O EACH OTHER. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, OR VARY THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HE ARING. 3 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. LD. COUNSEL OF THE ASSESSEE STATED THAT THE LD. CIT(A) HAS PASSED THE ORDER AGAINST THE PRINCIPLES OF NATURAL JUSTICE BY WAY OF EXPARTE ORDER IN NOT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSE SSEE. HENCE, HE REQUESTED THAT THE ISSUE INVOLVED IN THE PRESENT AP PEAL MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATIO N. 5. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT SUFFICIENT OPPORTUNITY WAS GR ANTED, BUT ASSESSEE COULD NOT AVAILED THE SAME BY HIM. HENCE, HE OPPOS ED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSE FOR SETTING ASIDE THE IS SUES TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. IT WAS THE CONTENTION OF THE ASSESSEES COUNSEL THAT LD. C IT(A) HAS DISMISSED THE APPEAL BY NOT PROVIDING SUFFICIENT OPPORTUNITI ES TO THE ASSESSEE WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. I NOTE THAT LD. CIT(A), HAS GIVEN HIS FINDING IN THE IMPUGNED ORDER 31.8.20 16 VIDE PARA NO. 2 AT PAGE NO. 1 & 2 OF HIS ORDER. THE SAID RELEVANT PAR AS ARE REPRODUCED AS UNDER:- 2. THE APPEAL OF THE APPELLANT WAS FIXED FOR HEARI NG FOR 03.05.2016 BUT THE APPELLANT ON 5.5.2016 MOVED A LETTER SEEKING ADJOURNMENT ON THE GROUND THAT THE WRITTEN SUBMISSION WAS UNDER FINALIZATION. THE SAME 4 WAS ALLOWED AND CASE WAS ADJOURNED TO 18.5.2016. ON 18.5.2016 ANOTHER LETTER WAS FILED FOR ADJOURNMENT ON THE GROUND THAT ONE SH. S.K. SUREKE WAS UNDERGOING TREATMENT AND THEREFORE WAS NOT ABLE TO ATTEND THE HEARING. AS A PROOF OF THE SAME SOME ONEY RECEIPTS IN THE NAME OF THE SAID PERSON WAS ENCLOSED ISSUED BY SOME PATHAK VED CURE CENTRE RUN BY ONE DR. SARVESH KUMAR PATHAK A SELF CLAIMED NATUROPATH. AS IS EVIDE NT THIS PERSON IS NOT COMPETENT TO PROVIDE ANY MEDICA L TREATMENT. FURTHER, THE NEXUS OF THE SAID PERSON WI TH THE APPELLANT IS ALSO NOT DISCLOSED. THE LETTER DA TED 18.5.2016 AS FILED BY THE APPELLANT DOES NOT DISCLO SES THE NAME OF THE PERSON OR THE NEXUS WITH THE APPELL ANT WHO WAS UNDERGOING THE ALLEGED TREATMENT. IT IS BUT OBVIOUS THAT APPELLANT IS AVOIDING APPEARING IN TH E PRESENT APPEAL. THE APPEAL IS THEREFORE DISMISSED F OR WANT OF PROSECUTION. THE IMPUGNED ASSESSMENT ORDER IS CONFIRMED. THE APPEAL OF THE APPELLANT FAILS AN D IS DISMISSED. 6.1 AFTER PERUSING THE AFORESAID FINDING OF THE LD. CIT(A), I AM OF THE CONSIDERED VIEW THAT THAT LD. CIT(A) HAS PASSED A N ON-SPEAKING AND EXPARTE ORDER, WHICH IS NOT SUSTAINABLE IN THE EYE S OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUES IN DISPUTE AFRES H, IN ACCORDANCE WITH 5 LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE AND PASS A SPEAKING ORDER. HOWEVER, THE ASSESSEE IS AL SO DIRECTED TO FULLY COOPERATE WITH THE LD. CIT(A) AND PRODUCE ALL THE D OCUMENTS BEFORE HIM TO SUBSTANTIATE HIS CLAIM AND NOT TO TAKE ANY UNNE CESSARY ADJOURNMENT. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 02/02/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR