M/s. Tuticorin Port Road Company Ltd., New Delhi V. ACIT, New Delhi

ITA 587/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8032 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 10-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT MOHAN GOVIL
• Assessee Lawyers: S S GUPTA
• Keywords: Recovery proceedings; Opportunity of being heard; Principle of natural justice; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.587/DEL./2013 (ASSESSMENT YEAR : 2006-07) M/S. TUTICORIN PORT ROAD COMPANY LTD., VS. ACIT, G 5 & 6, SECTOR 10, DWARKA, CIRCLE 16 (1), NEW DELHI 110 075. NEW DELHI. (PAN : AAACT0154F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.S. GUPTA, CA REVENUE BY : SHRI AMIT MOHAN GOVIL, CITDR DATE OF HEARING : 10.03.2016 DATE OF ORDER : 09.05.2016 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, M/S. TUTICORIN PORT ROAD COMPANY LIMITE D (HEREINAFTER REFERRED TO AS THE ASSESSEE), BY FIL ING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 15.11.2012 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 19, NEW DELHI QUA THE ASSESSMENT YEAR 2006-07 ON THE GROUND S INTER ALIA THAT :- 1. THAT THE ASSESSING OFFICER IS WRONG IN CONCLUDI NG THAT THERE WAS ANY CAPITAL WORK-IN-PROGRESS AMOUNTING TO RS.300670522/-, WHICH IS BASED ON THE DISTORTED VER SION OF FACTS ITA NO.587/DEL./2013 2 AND AGAINST ALL MATERIAL EVIDENCES AVAILABLE ON REC ORD IN SUPPORT OF THE ABOVE CAPITAL EXPENDITURE. I.E. DULY AUDITED BA LANCE SHEET AS ON 31-03-2006 AND AUDITOR'S REPORT THEREON. 2 THAT THE ASSESSING OFFICER'S CONCLUSION IS WITHO UT ANY BASIS, WITHOUT VERIFYING THE FACTS HIMSELF AND WITH OUT AN EVIDENCE IN HIS POSSESSION. 3 THAT NON-PRODUCTION OF CERTAIN BOOKS OF ACCOUNTS AND DOCUMENTS CANNOT LEAD TO THE EVIDENCE OF NON-INCURR ING OF CAPITAL EXPENDITURE ITSELF. 4 THAT THE DEFAULT OF NON-PRODUCTION OF BOOKS OF A CCOUNTS AND FURNISHING OF OTHER INFORMATIONS WAS NOT WILLFU L AND WAS ON ACCOUNT OF CIRCUMSTANCES BEYOND ITS CONTROL. 5 THAT THE RECOVERY OF TAX OF RS.99431298/- AND IN TEREST OF RS.32189328/- SIMPLY ON THE BASIS OF INCOME TAX COM PUTATION SHEET IS WRONG AND ILLEGAL SINCE NO SUCH INCOME OF RS.300670522/- HAS BEEN COMPUTED IN THE ASSESSMENT ORDER AND ALSO NO INTEREST HAS BEEN CHARGED IN THE ASSESSMENT ORDER. 6. THAT THE ORDER HAS BEEN PASSED WITHOUT ALLOWING DUE AND PROPER OPPORTUNITY TO THE APPELLANT BEFORE PASSING THE IMPUGNED ORDER AND THUS THE CANNONS OF NATURAL JUSTICE HAS B EEN VIOLATED. 7. THAT THE LEARNED CITCA) HAS ERRED IN PASSING THE EX-PARTE ORDER ON THE BASIS OF DEFAULT OF NON-APPEARANCE ON THE DATE OF HEARING ON 07-11-2012; SINCE THE NOTICE DATED 29-10 -12 FIXING THE APPEAL FOR 07-11-2012 NEVER REACHED TO THE APPELLAN T AND THUS HE WAS PREVENTED BY SUFFICIENT CAUSE IN NON-APPEARANCE ON THE DATE OF HEARING. 8. THAT THE ORDER OF THE LEARNED CIT(A) IS ALSO WRO NG, ILLEGAL, BASELESS AND UNJUSTIFIED EVEN ON MERITS SINCE NO SU CH ALLEGED INCOME WAS ASSESSED BY THE ASSESSING OFFICER AND TH ERE WAS SUFFICIENT EVIDENCE IN POSSESSION OF THE DEPARTMENT FOR INCURRING OF EXPENDITURE OF RS.300670522/- UNDER THE HEAD 'CA PITAL WORK-IN- PROGRESS'. 9. THAT ANY OTHER OR FURTHER GROUND OF APPEAL MAY A LLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL WHICH MAY BE DEEMED NECESSARY IN THE FACTS AND CIRCUMSTANCES OF THE CAS E. 10. THAT THE APPELLANT BE ALLOWED TO FILE ADDITIONA L EVIDENCE, IF SO REQUIRED FOR PROPER PROSECUTION OF THE CASE BASE D ON FACTS AND CIRCUMSTANCES, WHICH HAS NOT BEEN OR COULD NOT BE E DUCED OR FILED BEFORE LOWER AUTHORITIES EITHER BECAUSE PROPER AND SUFFICIENT OPPORTUNITY WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEED WAS NOT APPRECIATED.' ITA NO.587/DEL./2013 3 3. BRIEFLY STATED THE FACTS OF THIS CASE ARE : CONS EQUENT UPON THE NOTICES ALONG WITH QUESTIONNAIRE ISSUED UNDER SECTI ON 143(2) AND 142 (1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER T HE ACT), DURING THE SCRUTINY PROCEEDINGS, SHRI V.K. JAIN, CA/AR PUT IN APPEARANCE AND FILED REQUIRED DETAILS. BUT, DESPITE SPECIFIC DIRECTIONS, AR OF THE ASSESSEE HAS FAILED TO PRODUCE THE COMPLETE BOO KS OF ACCOUNT WITH BILLS AND VOUCHERS OF ALL PROJECTS INCLUDING C IVIL SUB- CONTRACTORS. ASSESSEE SHOWN THE CAPITAL WORK-IN-PR OGRESS AT THE END OF THE PREVIOUS YEAR AT RS.30,06,70,521.80 AS O N 31.03.2006 AND IN THESE CIRCUMSTANCES, THE AO HAS NOT ACCEPTED THE VERSION OF THE ASSESSEE THAT THERE WAS ANY CAPITAL WORK-IN-PRO GRESS AMOUNTING TO RS.30,06,70,521.80 AND DECLINED TO GRANT ANY DEP RECIATION ETC. IN THE SUCCEEDING YEARS ON THE SAID AMOUNT TO THE ASSE SSEE. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) WHO HAS DISMISSED THE APPEAL VIDE IMPUGNED ORDER. FEELING AGGRIEVED, THE ASSESSEE HAS APPROACHED THE TRIBUNAL BY WAY OF FILI NG THE PRESENT APPEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.587/DEL./2013 4 6. AT THE VERY OUTSET, IT HAS COME ON RECORD FROM T HE ORDER OF THE AO AS WELL AS FINDINGS RETURNED BY THE CIT (A) IN PARA 4.3 OF THE IMPUGNED ORDER, THAT DESPITE SEVERAL OPPORTUNIT IES, THE ASSESSEE HAS FAILED TO FURNISH THE REQUISITE DETAILS CALLED FOR BY THE AO IN THE FORM OF COMPLETE BOOKS OF ACCOUNT WITH BILLS AND VO UCHERS. EVEN DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS FAILED TO SEEK INDULGENCE OF THE LD. CIT (A) TO BRING ON RECORD AN Y SUCH DOCUMENTS TO CONTROVERT THE FINDINGS RETURNED BY TH E AO. 7. IN THE BACKDROP OF THE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE AO HAS NOT COMPUTED A NY INCOME NOR ASSESSED THE INCOME, WHICH WAS OTHERWISE NOT PO SSIBLE WITHOUT THE DOCUMENTS REQUIRED TO BE FURNISHED BY THE ASSES SEE, THE ORDER ITSELF IS A NULLITY. AT THE SAME TIME, THE CIT (A) HAS ALSO NOT DECIDED THE MATTER ON MERITS. 8. HOWEVER, FROM THE PERUSAL OF LETTER DATED 10.12. 2008, AVAILABLE AT PAGE 6 OF THE PAPER BOOK, SUPPORTED WI TH COPY OF DISPATCH REGISTER POSTAL DAK, IT IS PROVED ON FIL E THAT THE ASSESSEE HAS DISPATCHED THE REQUISITE DOCUMENTS WITH THE AO BUT THE POSSIBILITY OF THE SAME NOT REACHING AT THE DESTINA TION CANNOT BE RULED OUT AND IN THESE CIRCUMSTANCES, ASSESSEE CANN OT BE MADE TO SUFFER WHO IS OTHERWISE ENTITLED FOR ADEQUATE OPPOR TUNITY OF BEING HEARD. ITA NO.587/DEL./2013 5 8. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WHEN A SSESSMENT ORDER HAS BEEN PASSED WITHOUT ASSESSING ANY TAX PAY ABLE BY THE ASSESSEE, THE SAME IS NO ASSESSMENT ORDER IN THE EY ES OF LAW AND AS SUCH, WE HEREBY SET ASIDE THE ORDER PASSED BY CIT ( A) AND RESTORE THE CASE BACK TO THE AO TO DECIDE AFRESH AFTER PROV IDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQ UENTLY, THE PRESENT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 9 TH DAY OF MAY, 2016. SD/- SD/- (S.V. MEHROTRA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 9 TH DAY OF MAY, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT, FARIDABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.