K.M. Construction Company, Latur V. Income-tax Officer,

ITA 646/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9362 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Assessee Lawyers: K SRINIVASAN
• Keywords: Principle of natural justice; Corroborative evidences
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE , , , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI , AM . / I TA NO. 646 /PUN/20 15 / ASSESSMENT YEAR : 2011 - 12 K.M CONSTRUCTION COMPANY MEERA NAGAR, OLD AUSA ROAD, LATUR - 413 531 PAN : AAIFK0627R ....... / APPELLANT / V/S. INCOME TAX OFFICER WARD - 3(3), LATUR. / RESPONDENT APPELLANT BY : SHRI K. SRINIVASAN RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / / / DATE OF HEARING : 31.05.2017 / DATE OF PRONOUNCEMENT : 07 . 06.2017 / ORDER PER SUSHMA CHOWLA , JM T HIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A PPEALS ) - 2 , AURANGABAD DATED 11.03.2015 RELATING TO ASSESSMENT YEAR 2011 - 12 AGAINST ORDER PASSED UNDER S ECTION 144 R.W.S 147 OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1) THE HONBLE CIT(A) ERRED IN FINALIZING THE APPEAL WIT HOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT. THE APPELLANT PLEAD S THAT THEY ATTENDED HEARING BY THE APPEAL IN RESPONSE TO TWO NOTICES BUT IN ABSENCE OF CIT(A) NO HEARING COULD TAKE PLACE. THE APPELLANT PLEADS THAT THE ORDER PASSED BY THE CIT(A) IS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND OUGHT TO BE SET AS IDE. 2) THE HONBLE CIT(A) ERRED IN CONFIRMING ADDITION OF : - 2 ITA NO. 646/PUN/2015 I) DEFERRED FINANCE CHARGES OF RS. 8,04,717/ - ON GROUND THAT NO SUPPORTING EVIDENCE HAS BEEN FILED BY THE APPELLANT. THE APPELLANT PLEADS THAT THESE ARE CHARGES PAID TO SHRIRAM TRANSPORT FINANCE COMPANY LIMITED AND SREI EQUIP FINANCE (P) LTD BY CHEQUE TOWARDS TRUCKS/TIPPERS ACQUIRED BY THE ASSESSEE DULY REFLECTED IN THE BOOKS OF ACCOUNTS AND THAT DUE TO NON APPRECIATION OF THE FACTS OF THE CASE, THE ADDITION MADE BY THE AO AND CONFIRMED CIT(A) IS NOT JUSTIFIED AND OUGHT TO BE DELETED. II) HIRE CHARGES OF MACHINERY & TIPPER OF RS. 15, 91,320/ - U/S 40(A)(IA) RELATED TO THE PAYMENT OF ON GROUNDS THAT TDS HAD NOT BEEN DEDUCTED AND THAT THERE WAS NO EVIDENCE ON RECORD OF THESE PAYMENTS. THE APPELLANT PL EADS THAT OUT OF THE ABOVE PAYMENTS OF RS. 3 , 44 , 850/ - WERE BELOW THE LIMIT PRESCRIBED FOR TDS DEDUCTION AND RS. 2 , 11 , 470 REQUIRED NO TDS BY THE APPELLANT AS IT REPRESENTS DEDUCTIONS BY THE CONTRACTEE FROM PAYMENT RECEIVABLE AND WERE NOT PAYMENTS MADE BY THE APPELLANT. THE APPELLANT PLEADS THAT PROVISIONS OF TDS ARE NOT APPLICABLE AMOUNTS TOTALING TO RS.5 , 56 , 320 / - AND THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION TO THIS EXTENT. 3) THE APPELLANT PLEADS THAT ITS CLAIMS ARE LEGITIMATE AND ALLOWABLE AND CRAVES LEAVE TO ADD TO ALTER, AMEND MODIFY OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL. 3. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE GROUND OF APPEAL NO. 1 IS A PRELIMINARY ISSUE RAISED BY THE A SSESSEE AND THE SAME MAY BE ADMITTED. THE PLEA OF THE LD. AR FOR THE ASSESSEE BEFORE US WAS THAT NO ADMITTED. THE PLEA OF THE LD. AR FOR THE ASSESSEE BEFORE US WAS THAT NO SUFFICIENT OPPORTUNITY WAS ALLOWED BY THE CIT( A PPEALS ) AND ON TWO DATES OF HEARING, THE ASSESSEE HAD APPEARED BUT CIT(A PPEALS ) WAS NOT AVAILABLE AND HENCE, NO HEARING HAD BEEN TAKEN PLACE. 4. THE LD. DR FOR THE REVENUE ON THE OTHER HAND OPPOSE D THE SUBMISSION OF THE LD. AR FOR THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSMENT IN THE PRESENT CASE WAS COMPLETED EX - PAR TE U/S . 144 R.W.S 147 OF THE ACT WHEREIN ISSUE RAISED IS AGAINST THE RETURN OF INCOME OF RS.10,63,386/ - WHERE THE A SSESSMENT WAS MADE ON TOTAL INCOME OF RS.36,17,621/ - . THEREAFTER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS) WHO ALSO DECIDED THE SAID APPEAL , EX - PARTE THE ASSESSEE. A P ERUSAL OF THE APPELLATE ORDER REFLECTS THAT THE CIT(APPEALS) HAD REFERRED TO FOUR DATES OF HEARING ON WHICH NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY WRITTEN SUBMISSION 3 ITA NO. 646/PUN/2015 WERE FILED. CONSEQUENTLY, THE APPEAL WAS DECID ED ON MERIT WITHOUT HEARING THE ASSESSEE. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS EX - PARTE ORDER PASSED BY THE CIT(APPEALS). THE ASSESSEE PLEADS THAT IT HAD APPEARED ON TWO DATES OF HEARING, ON WHICH DATES THE CIT(APPEALS) WAS NOT AVAILABLE AND HENCE, D EFAULT AT MOST WAS ON TWO DATES OF HEARING. HOWEVER, HE PLEADED THAT APPLYING PRINCIPLE S OF NATURAL JUSTICE, THE APPEAL MAY BE RESTORED BACK TO THE FILE OF CIT(APPEALS) TO DECIDE THE ISSUE ON MERIT, AFTER HEARING THE ASSESSEE. 6. WE FIND MERIT IN THE PLEA OF THE ASSESSEE WHEREIN APPEAL OF THE ASSESSEE HAS BEEN DISPOSED OF IN A HURRY. THE ASSESSEE CLAIMED THAT IT HAD APPEARED BEFORE THE CIT(APPEALS) ON TWO DATES OF HEARING, ON WHICH DATES CIT(APPEALS) WAS NOT AVAILABLE. IN THE TOTAL ITY OF THE FACTS AND CIRCUMSTANCES, IT IS A FIT CASE FOR REMITTING THE ISSUE BACK TO THE FILE OF CIT(APPEALS) WHO SHALL DECIDE THE ISSUE ON MERIT DE - NOVO AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEA R BEFORE CIT(APPEALS) AND FURNISH EVIDENCE IN SUPPORT OF THE ISSUE RAISED ON MERITS. CONSEQUENTLY, THE GROUND OF APPEAL NO. 1 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ACCORDINGLY, THE ISSUE S RAISED ON MERIT BECOMES ACADEMIC. 7. IN THE R ESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 7TH DAY OF JUNE , 201 7 . S D / - S D / - (ANIL CHATURVEDI) ( SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 7 T H JUNE , 2017 . SB 4 ITA NO. 646/PUN/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 2, AURANGABAD. 4. THE PR. CIT - 2, AURANGABAD. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, /ASSISTANT REGISTRAR , / ITAT, PUNE .