RAJASTHAN PRIME DISTRIBUTOR, NEW DELHI V. ITO, WARD- 39(5), NEW DELHI

ITA 6902/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9087 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SAURABH GOYAL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-6902/DEL/2018 (ASSESSMENT YEAR- 2014-15) RAJASTHAN PRIME DISTRIBUTOR C/O SAURABH GOYAL & ASSOCIATES, 2 ND FLOOR, HOUSE NO. 171, SECTOR-21A, FARIDABAD, HARYANA. PAN NO. AALFR0887P (APPELLANT) VS ITO WARD 39(5) NEW DELHI. (RESPONDENT) APPELLANT BY SHRI SAURABH GOYAL, CA RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THE ASSESSEE FILED THE PRESENT APPEAL AGAINST THE I MPUGNED ORDER DATED 27.07.2018 PASSED BY THE LD. CIT(A) ON THE FOLLOWING GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT QUASHING THE IMPUGNED ASSESSMENT ORDER AND DISMISSI NG THE APPEAL OF THE APPELLANT THAT TOO WITHOUT PROVID ING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT OBS ERVING THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWANCE OF INTER EST AMOUNTING TO RS. 91,511/- U/S 40(A)(IA) ON THE GROUN D THAT TDS HAS NOT BEEN DEDUCTED ON THE SAID AMOUNT, MORE SO WHEN PAYEE IS AN INCOME TAX ASSESSEE AND HAS SHOWN THIS AMOUNT IN ITS RETURN OF INCOME AND PAID THE TAXES A LSO AND IMPUGNED DISALLOWANCE HAS BEEN MADE BY RECORDING ITA NO. 6902/D/2018 2 INCORRECT FACTS AND FINDINGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN OBSERVING THAT PAYER IS M/S AKHIL KUMAR GARG AND NOT THE APPELLANT, WITHOUT CONSIDERING THE FACT THAT M/S AKH IL KUMAR GARG IS THE PARTNER OF APPELLANT FIRM. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT ADJUDICATING THE ADHOC DISALLOWANCE OF RS. 37,417/- (1/8 TH OF RS. 2,99,338/-) ON ACCOUNT OF DEPRECIATION ON CA R AND THAT TOO WITHOUT ANY BASIS, FINDINGS, EVIDENCES AND MATERIAL AVAILABLE ON RECORD. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJU DICE TO EACH OTHER. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT LD. FIRST APPELLATE AUTHORITY HAS PASSED THE I MPUGNED ORDER AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFIC IENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE REQ UESTED THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH AS PER LAW AFTE R PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON BY THE ORDER S PASSED BY THE REVENUE AUTHORITIES, BUT DID NOT STRONGLY OP POSE THE REQUEST OF LD. COUNSEL FOR THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES, PERUSED THE RELEV ANT RECORD AVAILABLE WITH ME INCLUDING THE ORDERS PASSED BY TH E REVENUE ITA NO. 6902/D/2018 3 AUTHORITIES AND I AM OF THE VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASS ESSEE. THIS IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. T HEREFORE, IN THE INTEREST OF JUSTICE, ISSUES IN DISPUTE ARE SET ASID E TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH AS PER LAW AFTER PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSES SEE. 6. KEEPING IN VIEW OF THE NON-COOPERATION OF THE AS SESSEE BEFORE THE LD. FIRST APPELLATE AUTHORITY, I AM DIRE CTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEAR BEFORE THE L D. FIRST APPELLATE AUTHORITY ON 23/10/2019 AT 10.00 A.M. TH ERE IS NO NEED TO ISSUE NOTICE TO THE ASSESSEE BECAUSE THIS O RDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON10.07.2019 SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 10/07/2019 *KAVITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI ITA NO. 6902/D/2018 4 DATE 1. DRAFT DICTATED ON 09.07.2019 2. DRAFT PLACED BEFORE AUTHOR 09.07.2019/ 10.07.2019 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 10.07.2019 5. APPROVED DRAFT COMES TO THE SR.PS/PS 10.07.2019 6. ORDER PRONOUNCED AND UPLOADED 10.07.2019 7. FILE SENT TO THE BENCH CLERK 10.07.2019 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.