Anand Nishikawa Company Ltd., New Delhi V. ITO, New Delhi

ITA 5995/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74312 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: BALJIT SINGH
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

ITA NO. 5995/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 5995/DEL/2012 A.Y. : 2006-07 M/S ANAND NISHIKAWA COMPANY LTD., 25/31, ANBROS HOUSE, EAST PATEL NAGAR, NEW DELHI - 110 001 (PAN: - AAECA0338G) VS. ITO, WARD-1(4), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. BALJIT SINGH, CA DEPARTMENT BY : MS. Y. KAKKAR, DR ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS-IV), NEW DE LHI DATED 11.10.2011 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- 1. ON THE FACTS OF THE CASE, THE LD. CIT(A) HAS E RRED IN CONFIRMING OF THE ACTION OF THE LD. AO IN MAKING A N ADDITION OF THE SUM OF RS. 13,89,645/- AS FRINGE B ENEFIT VALUE. 2. THE LD. CIT(A) ERRED IN PASSING AN EXPARTE ORDER WITHOUT AFFORDING THE ASSESSEE SUFFICIENT OPPORTUNITY TO PR ESENT ITS CASE. ITA NO. 5995/DEL/2012 2 3. IN THIS CASE AO MADE THE ASSESSMENT BY MAKING A DDITION OF DIFFERENCE IN FRINGE BENEFIT, DECLARED BY THE ASSES SEE BY AN AMOUNT OF RS. 13,89,645/-. 4. UPON ASSESSEES APPEAL LD. CIT(A) AFFIRMED THE A OS ACTION IN AN EXPARTE ORDER. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. AT THE THRESHOLD, IT IS NOTED THAT THERE IS A DELAY IN 320 DAYS IN FILING THE APPEAL. WE NOTE THAT FOR THE SAME ASSESSMENT YE AR THE MATTER HAD EARLIER TRAVELLED TO THE TRIBUNAL. THE TRIBUNA L IN ITA NO. 437/DEL/2011 FOR ASSTT. YEAR 2006-07 VIDE ORDER DAT ED 16.12.2011 HAS CONSIDERED THE ISSUE WHEREIN TWO OTHER ISSUES W ERE ALSO RAISED ALONGWITH THE ISSUE OF ADDITION OF INFRINGE BENEFIT TAX. THE TRIBUNAL HAD REMITTED THE MATTER TO THE FILE OF THE LD. CIT( A) FOR READJUDICATION. THE DEPARTMENT HAD GONE INTO THE APEPAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT. THE HONBLE HIGH COURT VIDE ORDER DATED 19.9.2012 HAS HELD AS UNDER:- THE ASSESSEES APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) IN APPEAL NO. 145/2008-09 WAS DISPOSED OF BY THE TRIBUNAL ON 16.12.2011 THROUGH REMIT ORDER DIRECTING THE CIT(A) TO DECIDE ALL THE ISSUES AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ESSENTIAL TO NOTICE THAT TH E ASSESSEE PREFERRED APPEAL TO THE TRIBUNAL ONLY IN RESPECT OF ORDER PERTAINING TO THE REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THE ORDER MADE ON ITS APPEAL I.E. 157/2008-09 PERTAINING TO FBT, HAD APPARENTLY ACHIEVED FINALITY , AS THE SAME HAD NOT BEEN APPEALED. THE CONFUSION ITA NO. 5995/DEL/2012 3 IN THIS CASE WAS THE CONSEQUENCE OF THE CIT(A) TREATING THE APPEAL NO. 145/2008-09, AS A COMPOSITE ONE AND ENCOMPASSING THE FBT ISSUES, WHEREAS THE REALITY WAS THAT A SEPARATE APPEAL (APPEAL NO. 157/2008-09 WAS PENDING AND WAS SUBSEQUENTLY DISPOSED OF. THIS ERROR WAS NOT POINTED OUT TO THE TRIBUNAL. IN THESE CIRCUMSTANCE S, THE TRIBUNALS ORDER IS MODIFIED SO FAR AS IT PERT AINS TO THE FRINGE BENEFIT TAX. THE APPEAL NO. 157/2008-09 HAD ACHIEVED FINALITY. AT THIS STAGE IT WOULD BE ESSENTIAL TO NOTICE THAT THE ASSESSEE CLAIM THAT IT WAS UNAWARE OF THE ORDER DATED 11.10.2011 PASSED BY THE CIT(A) DISMISSING ITS APPEAL NO. 157/2008-09, SINCE IT WAS DISPOSED OF EX-PARTE. IT WOULD BE IN THE FITNESS OF THING S THAT IF THE ASSESSEE APPROACHES THE TRIBUNAL WITH AN APPEAL AGAINST THE SAID ORDER THE SAME WOULD BE CONSIDERED HAVING REGARD TO THE TOTALITY OF THE FAC TS AND IF ANY APPLICATION FOR CONDONATION OF DELAY IS MADE THE SAME SHALL BE CONSIDERED AND THE APPEAL WILL BE HEARD. 7. NOW IN ACCORDANCE WITH THE ABOVE SAID, ASSESSEE HAS FILED CONDONATION PETITION. IN LIGHT OF THE FACTS AND CI RCUMSTANCES OF THE CASE AS STATED ABOVE AND THE ORDER OF THE HONBLE H IGH COURT, WE CONDONE THE DELAY IN THE APPEAL. FURTHERMORE, WE NOTE THAT LD. CIT(A) HAS PASSED AN EXPARTE ORDER. IN OUR CONSIDE RED OPINION, ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY TO CANVASS ITS CASE PROPERLY. ACCORDINGLY, WE SET ASIDE THE ISS UE TO THE FILE OF THE LD. CIT(A). LD. CIT(A) SHALL PASS A SPEAKING ORDER , AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. ITA NO. 5995/DEL/2012 4 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14/3/2014. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 14/3/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES