Shailesh Kumar Gupta, Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 60/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4633 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH AGRAWAL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 60/LKW/2015 ASSESSMENT YEAR: 2010 - 11 SHAILESH KUMAR GUPTA LUCKNOW V. ACIT RANGE 3 LUCK NOW T AN /PAN : AHBPG1332M (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI. YOGESH AGRAWAL, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 16 03 2016 DATE OF PRONOUNCEMENT: 21 03 2016 O R D E R THIS APPEAL I S PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - PER SUNIL KUMAR YADAV,J.M: 1 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, LUCKNOW [HERE - IN - AFTER REFE RR ED TO AS THE LD. CIT (A)'S] ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE A.O. AND IN NOT AFFORDING ANY OPPORTUNITY TO THE APPELLANT TO HAVE ITS SAY OR MAKE NECESSARY COMPLIANCE OF THE REASONS RELIED UPON BY HIM WHILE PASSING THE PRESENT ORDER AND PASSING THE ORDER IN A MECHANICAL MANNER WITHOUT APPLICATION OF MIND AND NOT DECIDING ANYTHING ON THE MERITS OF THE CASE. WITHOUT PREJUDICE TO GROUND NO. I TAKEN ABOVE: - 2 . THE LD. CIT (A)'S ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE UNDER THE HEAD SUNDRY CREDITORS FOR AN AMOUNT : - 2 - : OF RS.27,35,476 / - WHICH SUCH ADDI TION WAS MADE WITHOUT ANY BASIS ONLY ON WHIMS AND FANCIES AND THUS THE SAID ADDITION MAY KINDLY BE ORDERED TO BE DELETED. 3 . ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE THE LD. CIT (A)'S GROSSLY ERRED ON FACTS IN CONFIRMING THE ADDITION OF RS.27,35,476/ - BY IGNORING THE FACT THAT ALL THE BALANCES ARE DULY RECONCILED AND THAT ALL SUCH EVIDENCES WERE PLACED BEFORE THE ASSESSING OFFICER DURING ASSESSMENT STAGE ITSELF AND THUS THIS ADDITION BEING MADE WITHOUT ANY BASIS ONLY ON NOTIONS, CONJE CTURES AND SURMISES MAY KINDLY BE ORDERED TO BE DELETED. 4 . THE LD. CIT (A)'S GROSSLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 1,07,781/ - BEING 10% OF THE EXPENSES DEBITED UNDER THE HEAD OF TRAVELLING AND CONVEYANCE, SALES PROMOTION, MISC. EXPENSES, VEHICLE RUNNING, VEHICLE REPAIR AND MAINTENANCE AND TELEPHONE EXPENSES AND ALSO DEPRECIATION WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD AS TO WHICH VOUCHER WAS NOT VERIFIABLE OR NOT AVAILABLE ON RECORD AND WHAT IS THE PERSONAL NATURE OF EXPEN SE IN TELEPHONE AND ' VEHICLES AND THUS THE ADDITION BEING DEVOID OF ANY MERIT MAY KINDLY BE ORDERED TO BE DELETED. 5 . THE LD. CIT (A)'S ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.5,82,630 / - CLAIMED UNDER THE HEAD 'AMOUNT DEDUCTED BY THE PARTY ' WITHOUT APPRECIATING THE TRUE NATURE OF THE EXPENSE CLAIMED AND TREATING IT TO BE PENAL IN NATURE AND THUS AS THE SAME IS BY NO STRETCH OF IMAGINATION PENAL IN NATURE AND FULLY ALLOWABLE IN LAW THE SAME MAY KINDLY BE ALLOWED. 6 . IN CONFIRMING THE ADDITION O F RS.5,82,630 / - THE LD. CIT (A)'S CHOSE TO COMPLETELY IGNORE THE FACT THAT THE NATURE OF THESE : - 3 - : EXPENSES WERE PRICE DIFFERENCE, CALCULATION DIFFERENCE, NON APPROVAL OF CLAIM OF ANY NATURE WHERE THE PRINCIPAL DOES NOT AGREE TO THE RATES OR VALUE CHARGED ETC. AND THUS THE SAME ARE NOT AT ALL PENAL IN NATURE AND ARE FULLY ALLOWABLE AND THUS MAY KINDLY BE ALLOWED. 7 . THE LD. CIT (A)'S FURTHER GROSSLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 1,54,080 / - WHICH WAS DISALLOWED ON ACCOUNT OF THE FACT T HAT TDS WAS NOT DEDUCTED ON PAYMENT OF RENT WHEREAS NO DETAILS WERE AT ALL CALLED FOR BY THE ASSESSING OFFICER TO SHOW AND PROVE THAT THE LIABILITY TO DEDUCT TAX WAS NOT THERE AT ALL AND THAT AS THERE WAS NO LIABILITY TO DEDUCT TAX THE PROVISIONS OF SEC. 4 0A(IA) WERE NOT AT ALL APPLICABLE. 8 . THE ADDITIONS SO CONFIRMED ARE VERY VERY HIGHLY EXCESSIVE, CONTRARY TO FACTS, LAWS AND PRINCIPLES OF NATURAL JUSTICE AND FAIR - PLAY AND THUS MAY KINDLY BE ORDERED TO BE QUASHED/ANNULLED. 9 . THAT, THE LD. CIT (A)'S DID NOT AFF ORD THE APPELLANT ANY PROPER OR SUFFICIENT OPPORTUNITY TO HAVE ITS SAY OR MAKE NECESSARY COMPLIANCE OF THE REASONS RELIED UPON BY HIM IN CONFIRMING THE ADDITIONS AND THUS THE ORDER SO PASSED WITHOUT AFFORDING ADEQUATE OPPORTUNITY MAY KINDLY BE ORDERED TO B E QUASHED. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. IT WAS FURTHER CONTENDED THAT EVEN THE ASSESSING OFFICER HAS NOT APPRECIATED THE EVIDENCES FILED BEFORE HIM IN SUPPORT OF HIS CONTENTION. THEREFO RE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. : - 4 - : CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION OF THE IMPUGNED ISSUES ON MERIT IN THE LIGHT OF THE EVIDENCES FILED BY THE ASSESSEE . 3 . THE LD. D .R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) . 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT DEALING WITH THE ISSUES ON MERIT. IT IS ALSO EVIDENT THAT THE ASSESSING OFFICER HAS ALSO NOT APPLIED HIS MIND TO THE EVIDENCES FILED BY THE ASSESSEE. W E ARE , THEREFORE, OF THE VIEW THAT SINCE THE LOWER AUTHORITIES HAS NOT DISPOSED OF THE ISSUES ON MERIT, THE ORDER OF CIT(A) DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE - ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON MERIT . 5 . IN TH E RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST 1 . APPELLANT M ARCH , 2016 JJ: 1703 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR