M/S AMBEY CONSTRUTECH PRIVATE LIMITED , BATHINDA V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1, BATHINDA

ITA 62/ASR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0343 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 03-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER I.T.A NO. 62/ASR/2020 (ASSESSMENT YEAR-2015-16) M/S AMBEY CONSTRUTECH PVT. LTD. 21605, ST. NO. 7, POWER HOUSE ROAD, BATHINDA. PAN:AAKCA0933H (ASSESSEE) VS.. THE DCIT, CIRCLE-1, BATHINDA. (REVENUE) ASSESSEE BY SH. P. N. ARORA, ADV. REVENUE BY SMT. RATINDER KAUR, DR. DATE OF HEARING 07 . 0 7 .202 1 DATE OF PRONOUNCEMENT 12 .0 7 .202 1 ORDER PER, LALIET KUMAR, J.M.: THE APPEAL FILED BY THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF LD. CIT(A), DATED 15.02.2019 FOR A.Y. 2015-16. THE ASSESSEE HAS RAISED THE GROUNDS: 1. THAT TH LD. CIT(A) ERRED ORI FACTS OND LAW IN PASS ING EX-PARTE ORDER IN APPEAL NO.160-IT/2017-18 VIDE ORDER DATED 15.02. 2019 TO DECIDE TH APPEAL OF TH ASSESSEE AGAINST TH ASSESSMENT ORDER U/S 143(3)1263 DATED 18.12.2017 WITHOUT PROVIDING PROPER OPPORTUNI TY OF HEARING TO TH ASSESSEE. 2.THAT THLD. CIT(A) ERRED ON FACTS AND LAW IN DECI DING TH APPEAL OF TH ASSESSEE IN APPEAL NO.160-IT/2017-18 VIDE ORDER DAT ED 15.02.2019 WITHOUT GIVING TH FINDINGS ON TH MERITS ON TH GR OUNDS OF APPEAL RAISED IN FORM NO. 35. 3.THAT THLD.CIT(A) ERRED ON FACTS AND LAW CONFIRMI NG TH ACTION OF TH AO I.T.A NO. 62/ASR/2020 2 OF MAKING TH ADDITION OF RS.5.5 CRORES ON ACCOUNT OF ALLEGED SALES WITHOUT REBUTTING TH EXPLANATION OF TH ASSESSEE S UBMITTED DURING TH COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT THLD. CIT(A) ERRED ON FACTS AND LAW IN CON FIRMING TH ACTION OF TH AO OF ESTIMATING TH NET PROFIT OF RS.44,00, 000/- ON ALLEGED SALES BY APPLYING NET PROFIT RATE @8% DESPITE TH FACT THAT TH AMOUNT OF RS.5.5 CRORES ON ACCOUNT OF DECREASE IN STOCK/WORK IN PROG RESS HAS ALREADY BEEN ADDED TO TH INCOME OF TH ASSESSEE. 5. THAT THLD.CIT(A) ERRED ON FACTS AND LAW IN CONF IRMING TH ACTION OF TH AO OF DISALLOWING RS.2,32,23,822/- BEING TH INTERE ST DEBITED TO PROFIT LOSS ACCOUNT BY INVOKING TH PROVISIONS OF SECTION 43B. 6. THAT TH APPELLANT CRAVES LEAVE TO ADD OR AMEND TH GROUNDS OF APPEAL BEFORE TH APPEAL IS FINALLY HEARD OR DISPOSED OF. BRIEF FACTS 1. IN THE PRESENT CASE THE INCOME OF THE ASSESSEE W AS ASSESSED BY THE ASSESSING OFFICER TO THE TUNE OF RUPEES 42, 22, 943 /-AS THE RETURNED INCOME (-) RS 784,00,879/-. WHILE COMPUTING THE INCOME OF THE ASS ESSEE, THE ASSESSING OFFICER HAS FILED BY THE ASSESSEE AND HAD ALSO GRANTED THE OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. FEELING AGGRIEVED BY THE ORDER PASSED BY THE ASS ESSING OFFICER THE ASSESSEE PREFERRED APPEAL BEFORE THE COMMISSIONER APPEAL. TH E COMMISSIONER APPEAL HAD ISSUED THE NOTICE FOR APPEAL IN ON FIRST MAY 20 18, 14/11/2018 AND 24 JANUARY 2019. ON ALL THE 3 OF THE ASSESSEE HAS NOT APPEARED BEFORE THE COMMISSIONER APPEAL AND ASSESS THE COMMISSIONER APPEAL WAS CONCE RNED TO DECIDE THE APPLICATION BASED ON THE MATERIAL AVAILABLE ON RECO RD AND HAD DISMISSED THE APPEAL FILED BY THE ASSESSEE BY PROCEEDING EX PARTE AND THE ASSESSEE. I.T.A NO. 62/ASR/2020 3 3. FEELING AGGRIEVED BY THE ORDER PASSED BY THE COM MISSIONER APPEAL ASSESSEE IS BEFORE US ON THE GROUNDS MENTIONED HEREINABOVE. 4. AT THE OUTSET IT WAS SUBMITTED BY THE ASSESSEE T HAT THE APPELLANT PREFERRED BY THE ASSESSEE DELAYED FOR A PERIOD OF 272 DAYS AND FOR T HAT PURPOSES THE ASSESSEE HAD SUBMITTED THE EXPRESSION FORMING PART OF THE RE CORD AND IT WAS SUBMITTED THAT THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDON ED. 5. THE LD. DR, HAS NOT RAISED OBJECTION FOR CONDONI NG THE DELAY. 6. CONSIDERING THE REASONING GIVEN IN THE APPLICATI ON FOR CONDONATION OF DELAY AND CONSIDERING THE NATURE OF ORDER PASSED BY THE COMMI SSIONER APPEALS, WE ARE OF THE OPINION THAT THE DELAY IN FILING THE APPEAL IS REQUIRED TO BE CONDONED AND WE CONDONE THE SAID. 7. ON THE LD. AR HAD SUBMITTED THAT FOR THE REASONS THE APPELLANT HAS NOT APPEARED BEFORE THE COMMISSIONER APPEAL ON THE OCCASION OF T HE NECESSARY INSTRUCTIONS WERE GIVEN BY THE ASSESSEE TO THE COUNSEL FOR PURSU ING THE APPEAL. NONETHELESS IT WAS SUBMITTED THAT THE CIT APPEAL AT THE FACT TH AT THE APPEAL ON THE BASIS OF EX PARTE AND HAS NOT DECIDED THE APPEAL ON MERIT. IT W AS SUBMITTED THAT EVEN IF THE ASSESSEE HAD NOT APPEAR BEFORE THE CIT APPEAL IT IS THE DUTY OF THE CIT TO DECIDE THE APPEAL ON MERITS INSTEAD OF DISMISSING ON TECHN ICAL GROUNDS. I.T.A NO. 62/ASR/2020 4 8. THE ABOVE SAID PROPOSITION WAS CONFRONTED TO THE LD. DR, SHE HAD SUBMITTED OPPORTUNITIES WERE GRANTED TO THE ASSESSEE BEFORE T HE LEARNED CIT APPEAL. IT WAS SUBMITTED THAT THE ASSESSEE IS NOT ENTITLED TO 2 ND INNING BEFORE THE CIT A. FURTHER, THE LEARNED DR HAD FAIRLY SUBMITTED THAT, THAT THE MATTER MAY KINDLY BE REMANDED BACK TO THE FILE OF THE COMMISSIONER APPEAL FOR A F RESH ADJUDICATION OF APPEAL. 9. WE HAVE HEARD THE RIVAL CONTENTION OF THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS LAID DOWN BY THE HONORABLE SUPREME COURT IN CATENA OF JUDGEMENT THAT THE PURPOSE OF TAX ADMINISTRATION IS TO COLLECT JUST AND FAIR TAX FROM THE CITIZEN AND IT SHOULD NOT BE AN ENDEAVOR OF THE REVENUE AUTHORITY TO TAKE BENEFIT OF IGNORANCE OF THE CITIZEN OR ABSENCE OF A PPELLANT IN THE PROCEEDINGS. 10. IN OUR CONSIDERED OPINION THE INTEREST OF JUSTI CE, REQUIRES THAT THE MATTERS BE SENT BACK TO THE FILE OF THE LEARNED CIT(A) FOR A FRESH ADJUDICATION ON MERIT. WE EXPECT THE LEARNED CIT(A) TO DECIDE THE MATTER EXPEDITIOUS LY AFTER ISSUING THE SUFFICIENT NOTICE TO THE ASSESSEE AND HE SHALL GRANT THE ASSES SEE SUFFICIENT OPPORTUNITY TO PRODUCE THE EVIDENCE/DOCUMENT AS MAY BE ADVISED. 11. THE ASSESSEE IS ALSO DIRECTED TO PRESENT ON EAC H AND EVERY DATE FIXED BY THE AO AND SHALL NOT TAKE UNDUE DATE/ADJOURNMENT IN THE MA TTER. IT IS EXPECTED THAT THE APPEAL SHALL BE DECIDED BY THE CIT(A) PREFERABLY W ITHIN A PERIOD OF 6 MONTHS FROM THE RECEIPT OF THIS ORDER. 12. NEEDLESS TO SAY THAT WE HAVE NOT ADJUDICATED A ND DECIDED ALL THE GROUNDS RAISED BEFORE US AND HAVE ONLY REMANDED BACK THE MATTER TO THE FILE OF THE AO FOR DECIDING THE ASSESSMENT DENOVO, THE LEARNED AO SHAL L DECIDE THE MATTER WITHOUT I.T.A NO. 62/ASR/2020 5 BEING INFLUENCED BY ANY OF THE OBSERVATION MADE HER EIN ABOVE IN ACCORDANCE WITH LAW. 13. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/07/2021. SD/- SD/- (DR. M.L. MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *GYAN PRAKASH SR. P.S. * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT SR. PRIVATE SECRET ARY ITAT, AMRITSAR