ICCONOL PETROLEUMS P.LTD, MUMBAI V. ITO 8(2)(1), MUMBAI

ITA 6501/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8971 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: I
• Next Hearing Date: 15-12-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 22-10-2014
• Court: TRIBUNAL
• Assessee Lawyers: APURVA R SHAH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI , JUDICIAL MEMBER ITA NO.6501/M/2014 (AY 2006 - 2007) M/S. ICCONOL PETROLEUMS PVT LTD., E - 9, NAND DHAM INDL. ESTATE, MAROL MAROSHI ROAD, ANDHERI (E), MUMBAI 400 059. / VS. INCOME TAX OFFICER, 8(2)(1), R.NO. 216A, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAACI9199K ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : MR. APURVA R. SHAH / RESPONDENT BY : MR. SAURABH KUMAR RAI, DR / DATE OF HEARING : 15.12.2016 / DATE OF PRONOUNCEMENT : 1 1 .01.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 15.12.2016 IS AGAINST THE ORDER OF THE CIT (A) - 17, MUMBAI DATED 19.8.2014 FOR THE ASSESSMENT YEAR 2006 - 07. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - LD CIT (A) HAS ERRED IN 1. IN FACTS AND IN LAW IN CONFIRMING AN ADDITION OF SUPPRESSED SALES OF RS. 3 CRS. 2. IN NOT APPRECIATING THAT THE ADDITION WAS MADE MERELY BASED ON AN ENQUIRY BY THE EXCISE DEPARTMENT AND WHERE THE ADDITION ITSELF WAS UNDER APPEAL BEFORE CESTAT. 3. IN NOT APPRECIATING THAT THE BASIS OF THE ADDITION ON STATEMENTS MADE BY SOME PARTIES NOTWITHSTANDING THAT MOST OF THESE STATEMENTS HAD SUBSEQUENTLY BEEN RETRACTED. 4. IN NOT APPRECIATING THAT ONUS OF PROOF WAS ON THE PERSON MAKING AN ALLEGATION AND NOT THE APPELLANT AND THAT THIS ONUS HAD NOT BEEN DISCHARGES IN THE PRESENT CASE. 5. IN CORRECTLY HOLDING THAT THE APPELLANT WAS PROVIDED WITH COPIES OF THE EVIDENCE AVAILABLE WITH THE AO BASED ON WHICH THE SAID ASSESSMENT WAS DONE AND THER EBY NOT HOLDING THAT THERE WAS DENIAL OF NATURAL JUSTICE. 6. IN HOLDING THAT THE APPELLANT WAS GIVEN AN ADEQUATE OPPORTUNITY FOR CROSS EXAMINATION OF WITNESSES WHEREAS NO SUCH OPPORTUNITY WAS GIVEN BY THE INCOME TAX AUTHORITIES. 7. WITHOUT PREJUDICE, IN NOT ADJU STING THAT THE ADDITION TO THE INCOME EARNED FROM ESTIMATED SALES AND IN MAKING AN ADDITION TO INCOME OF THE ENTIRE SUPPRESSED SALES. 2 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF LUBRICATING OILS AND TRADING IN PHARMACEUTICALS. ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 1/ - . ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH SECTION 254 OF THE ACT AND THE ASSESSED INCOME WAS DETERMINED AT RS. 3 CRS. IN THE ASSESSMENT, AO MADE ADDITION OF RS. 3 CRS ON ACCOUNT OF SUPPRESSION OF SALES. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE S UBMISSIONS OF THE ASSESSEE, CIT (A) CONFIRMED THE ADDITION MADE BY THE AO. AGAIN AGGRIEVED WITH THE SAID DECISION OF THE CIT (A), ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 4. BEFORE US, LD AR FOR THE ASSESSE E SUBMITTED THAT THE CASE NEEDS TO BE RESTORED TO THE FILE OF THE AO / CIT (A). EXPLAINING THE SAME, LD AR SUBMITTED THAT THIS IS THE 2 ND ROUND OF THE PROCEEDINGS AND IN THE FIRST ROUND, ON FINDING THAT IT WAS THE CASE OF ADDITION INVOLVING THE EXCISE DEP ARTMENT INVESTIGATION, AO MADE AD - HOC ADDITION, WHICH WAS EVENTUALLY REMANDED BY THE ITAT TO THE FILE OF THE AO. IN THE 2 ND ROUND, THE AO REPEATED THE SAME ADDITIONS AND THE CIT (A) CONFIRMED THE SAME BY HIS ORDER DATED 19.8.2014. STATING THAT THERE WERE CERTAIN NEW DEVELOPMENTS IN EXCISE DEPARTMENT / CESTAT, LD AR FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE CESTAT (PAGES 1 - 20 OF THE PAPER ARE RELEVANT) AND READ OUT THE LAST PARAGRAPHS OF THE SAID ORDER DATED 16.10.2015. EXPLAINING THE SAME, LD AR MENTIONED THAT THE CESTAT PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND THE SAME IS RELEVANT TO THE ADDITION, WHICH ARE UNDER ADJUDICATION BY US. 5. ON HEARING BO TH THE PARTIES AND ON PERUSAL OF TH E SAID ORDER OF THE CESTAT DATED 16.10.2015 (SUPRA), WHICH IS SUBSEQUENT TO THE ORDER OF THE CIT (A) DATED 19.8.2014, WE FIND THAT THE FINDING OF THE CESTAT IS RELEVANT AND IT HAS THE EFFECT ON THE CONCLUSIONS OF THE ADDITION, IF ANY. ACCORDINGLY, WE REMAND THE GROUNDS IN TOTO TO THE FILE OF THE AO FOR FRESH ADJU DICATION ON THE MERITS OF THE ADDITION. AO SHALL CONSIDER THE SAID ORDER O F THE CESTAT / OTHER EVIDENCES BINDING JUDICIAL LAW, IF ANY,, DURING THE REMAND PROCEEDINGS. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET P RINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 3 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY, 2017 . SD/ - SD/ - ( RAM LAL NEGI ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 11.01.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI