VISHNU PACKAGING PVT. LTD., NEW DELHI V. ACIT, CIRCLE-I, NEW DELHI

ITA 5872/DEL/2017

• Counselvise Citation: [2020] 129 COUNSELVISE.COM (IT) 9880 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 14-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SARAS KUMAR
• Assessee Lawyers: VANSHIKA TANEJA
• Keywords: Set aside
• Section: 142(1); 250; 143(2); 13; 147; 68; 148

Judgement Text

ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 1 OF 25 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 5872/DEL/2017 ( ASSESSMENT YEAR: 2010-11) VISHNU PACKAGING PVT. LTD., NEW DELHI. VS. ACIT, CIRCLE-1, NEW DELHI. PAN NO: AACCV0765G APPELLANT RESPONDENT ASSESSEE BY : MS. VANSHIKA TANEJA, ADV. REVENUE BY : SHRI SARAS KUMAR, SR. DR ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE IMPUGNED APPELLATE ORDER DATED 30.06.2017 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1, NOIDA, [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESSMENT YE AR 2010-11, ON THE FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE LD. CIT(A) PASSED U/S 250 OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AND ON FACTS. 2. THAT THE LD. CIT(A) HAS EXCEEDED HIS JURISDICTI ON BY DIRECTING THE LD. AO TO PROCEED IN TERMS OF SECTION 150 OF THE INCOME TAX ACT, 1961 AND REFRAME ASSESSMENT ORDER AS PER LAW AND AFTER COMPL YING WITH THE PRESCRIBED PROCEDURE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, DELETE AND MODIFY ANY OR ALL THE GROUNDS OF APPEAL, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER, BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 2 OF 25 (B) THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHORT) DATED 22.03.2013 AND INITIA TED PROCEEDING UNDER SECTION 147 READ WITH SECTION 148 OF I.T. ACT, AFTER RECORDING THE R EASONS ON FILE. ASSESSMENT ORDER DATED 27.03.2014 WAS PASSED BY THE ASSESSING OFFICE R (AO, FOR SHORT) WHEREIN TOTAL INCOME WAS ASSESSED AT RS. 1,00,00,000/- AS AGAINST RETURNED INCOME OF NIL. IN THE AFORESAID ASSESSMENT ORDER DATED 27.03.2014, THE AD DITION OF RS. 1,00,00,000/- WAS MADE UNDER SECTION 68 OF I.T. ACT. THE ASSESSEE FI LED APPEAL BEFORE THE LD. CIT(A). VIDE IMPUGNED APPELLATE ORDER DATED 30.06.2017, LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO REFRAME THE ASSESSMENT ORDER AS PER LAW. IN EFFECT, THE AFORESAID DIRECTION OF THE LD. CIT(A) WAS TANTAMOUNT TO SETTING ASIDE OF THE ASSESSMENT ORDER. THIS PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAIN ST THE AFORESAID IMPUGNED APPELLATE ORDER DATED 30.06.2017 OF LD. CIT(A). DURING THE A PPELLATE PROCEEDINGS IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT), WRITTEN SUB MISSIONS VIDE LETTER DATED 20.11.2019 WERE FILED FROM THE ASSESSEES SIDE, WHICH IS REPRO DUCED BELOW FOR EASE OF REFERENCE: ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 3 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 4 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 5 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 6 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 7 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 8 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 9 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 10 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 11 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 12 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 13 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 14 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 15 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 16 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 17 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 18 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 19 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 20 OF 25 ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 21 OF 25 (B.1) A PAPER BOOK WAS ALSO FILED FROM THE ASSESSEES SID E DURING THE APPELLATE PROCEEDINGS IN ITAT, CONTAINING THE FOLLOWING PARTI CULARS: 1. COPY OF ITR ACKNOWLEDGMENT FOR AY 2010-11 2. COMPUTATION OF INCOME FOR AY 2010-11 3. COPY OF FINANCIAL STATEMENT FOR THE YEAR ENDED 31.03.2010 IN RESPECT OF ADDITIONS OF RS. 1,00,00,000/- U/S 68 OF THE ACT 4. REPLY DATED 11.03.2014 FURNISHED TO LD. AO 5. REPLY DATED 06.03.2014 FURNISHED TO LD. AO 6. REPLY DATED 19.03.2014 FURNISHED TO LD. AO ALON GWITH FOLLOWING DOCUMENTS: A. LIST OF PARTIES TO WHOM LOANS WERE TAKEN B. COPY OF LOAN CONFIRMATION C. COPY OF PAN CARD D. COPY OF RELEVANT BANK STATEMENT 7. REPLY DATED 25.03.2014 FURNISHED TO LD. AO 8. COPY OF ASSESSMENT ORDER DATED 23.12.2018 9. NOTICE DATED 16.11.2017 ISSUED U/S 143(2) OF TH E ACT 10. NOTICE DATED 04.09.2018 ISSUED U/S 142(1) OF T HE ACT 11. NOTICE DATED 17.10.2018 ISSUED U/S 142(1) O F THE ACT 12. NOTICE DATED 29.10.2018 ISSUED U/S 142(1) OF T HE ACT 13. REPLY DATED 22.10.2018 FURNISHED TO LD. AO ON 24.10.2018. ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 22 OF 25 (C) AT THE TIME OF HEARING BEFORE US, REPRESENTATIVES O F BOTH SIDES, LD. COUNSEL FOR ASSESSEE, AS WELL AS LD. DEPARTMENTAL REPRESENTATIV E, WERE IN AGREEMENT THAT THE IMPUGNED APPELLATE ORDER DATED 30.06.2017 OF LD. CI T(A) IS A NON-SPEAKING ORDER AS FAR AS MERITS OF THE APPEAL ARE CONCERNED. BOTH SIDES WERE IN AGREEMENT THAT THE LD. CIT(A) MAY BE DIRECTED TO PASS AFRESH ORDER ON MERI TS OF THE DISPUTED ISSUE IN THIS APPEAL, THROUGH A SPEAKING ORDER ON MERITS. AFTER HEARING BOTH SIDES, AND AFTER PERUSAL OF RECORDS, WE FIND THAT THE LD. CIT(A) HAS DIRECTE D THE ASSESSING OFFICER TO RE-FRAME THE ASSESSMENT ORDER AS PER LAW. THIS DIRECTION IS TANTAMOUNT TO SETTING ASIDE THE ASSESSMENT ORDER OF THE ASSESSING OFFICER FOR PASSI NG A FRESH ASSESSMENT ORDER. HOWEVER, WITH EFFECT FROM 01.06.2001, THE LD. CIT(A ) HAS CEASED TO HAVE POWER TO SET ASIDE THE ASSESSMENT ORDER OF THE ASSESSING OFFICER AND TO DIRECT THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER. THE POWER OF THE CIT(A) TO SET ASIDE THE ASSESSMENT ORDER WAS WITHDRAWN THROUGH AMENDMENT TO SECTION 251(1)(A) OF I.T. ACT WITH EFFECT FROM 01.06.2001. THUS, WHILE THE CIT(A ) HAS POWERS TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT, WITH EFFECT FROM 0 1.06.2001 THE CIT(A) HAS NO POWER TO SET ASIDE THE ASSESSMENT ORDER AND DIRECT THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER. MOREOVER, BOTH SIDES HAVE AGREED AT THE TIME OF HEARING BEFORE US, THAT THE IMPUGNED APPELLATE ORDER DATED 30.06.2017 OF LD. CIT(A) IS A NON- SPEAKING ORDER ON MERITS OF THE ISSUES IN THE DISPU TE IN RESPECT OF THE APPELLATE PROCEEDINGS THEN PENDING BEFORE THE LD. CIT(A). AS PER SECTION 250(6) OF I.T. ACT, THE CIT(A), WHILE DISPOSING OF THE APPEAL, IS REQUIRED TO STATE, IN HIS ORDER, THE POINTS FOR DETERMINATION, DECISION THEREON AND REASON FOR THE DECISION. THE RELEVANT PROVISIONS UNDER I.T. ACT ARE CONTAINED IN SECTION 250(6) OF I .T. ACT. A PERUSAL OF THE ABOVE ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 23 OF 25 PROVISIONS OF LAW SHOWS THAT U/S 250(6) OF I.T. ACT THE LD. CIT(A) WAS OBLIGED TO DISPOSE OF THE APPEAL IN WRITING AFTER STATING THE POINTS FOR DETERMINATION AND TO THEN PASS AN ORDER ON EACH OF THE POINTS WHICH AROSE FOR CONSIDERATION; AND THE LD. CIT(A) WAS FURTHER OBLIGED TO STATE THE REASONS FOR HIS DE CISION ON EACH SUCH POINTS WHICH AROSE FOR DETERMINATION. IN THE PRESENT APPEAL BEF ORE US, THE LD. CIT(A) HAS PASSED A SUMMARY ORDER WITHOUT DECIDING THE ISSUES ON MERITS , WHICH IS IN VIOLATION OF SECTION 250(6) OF I.T. ACT. THE CIT(A) IS DUTY BOUND UNDER SECTION 250(6) OF I.T. ACT TO PASS A SPEAKING ORDER ON MERITS ON ALL THE ISSUES IN DISPU TE WHICH ARISE FOR HIS DETERMINATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). O N PERUSAL OF THE IMPUGNED APPELLATE ORDER DATED 30.06.2017 OF LD. CIT(A) WE FIND THAT H E HAS FAILED TO COMPLY WITH THIS REQUIREMENT PRESCRIBED UNDER SECTION 250(6) OF I.T. ACT. (D) IN VIEW OF THE FOREGOING, WE ARE OF THE VIEW THA T THE IMPUGNED APPELLATE ORDER DATED 30.06.2017 OF LD. CIT(A) NOT ONLY FAILS TO CO MPLY WITH THE REQUIREMENTS UNDER SECTION 250(6) OF I.T. ACT; BUT IS ALSO VIOLATIVE O F AMENDED PROVISIONS OF LAW CONTAINED IN SECTION 251(1)(A) OF I.T. ACT WITH EFFECT FROM 0 1.06.2001. IN THE FITNESS OF THINGS, THEREFORE, AND AS BOTH SIDES AGREED TO THIS BEFORE US AT THE TIME OF HEARING, WE ARE SETTING ASIDE THE IMPUGNED APPELLATE ORDER DATED 30 .06.2017 PASSED BY LD. CIT(A) AND WE ARE RESTORING ALL THE ISSUES IN DISPUTE TO THE F ILE OF THE LD. CIT(A), WITH THE DIRECTION TO DECIDE THE ISSUES IN DISPUTE AFRESH, THROUGH A S PEAKING ORDER, ON MERITS, IN ACCORDANCE WITH LAW. ALL THE GROUNDS RAISED IN THE PRESENT APPEAL BEFORE US ARE TREATED ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 24 OF 25 AS DISPOSED OFF IN ACCORDANCE WITH THE AFORESAID DI RECTION. FOR STATISTICAL PURPOSES, THE APPEAL IS PARTLY ALLOWED. (E) IN THE RESULT, APPEAL FILED BY ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.01.20. SD/- SD/- (H.S. SIDHU) (A NADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUN TANT MEMBER DATED: 16.01.20. POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-5872/DEL/2017. M/S VISHNU PACKAGING PRIVATE LIMITED. PAGE 25 OF 25 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER