M/s. Woodbury Estates and Securities Pvt.Ltd, Pune V. Assistant Commissioner of Income-tax, Circle -7, Pune

ITA 723/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4093 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Principle of natural justice

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.723/PUN/2018 / ASSESSMENT YEAR : 2009-10 M/S. WOODBURY ESTATES & SECURITIES PRIVATE LIMITED. 633, PULACHI WADI, ABHINANDAN PLAZA, DECCAN GYMKHANA, PUNE-411 004. PAN : AAACW5280H .... / APPELLANT ! / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-7, PUNE. / RESPONDENT ASSESSEE BY : SHRI SUHAS BORA REVENUE BY : SHRI M.K VERMA / DATE OF HEARING : 06.02.2019 / DATE OF PRONOUNCEMENT : 07.02.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEALS), PUNE-5, PUNE DATED 09.01.2018 FOR THE ASSESSM ENT YEAR 2009- 10 AS PER FOLLOWING GROUNDS OF APPEAL ON RECORD: ON FACTS AND IN LAW, 1. THE LEARNED CIT(A) ERRED IN PASSING THE EX-PARTE OR DER WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT. 2 ITA NO. 723/PUN/2018 A.Y.2009-10 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT APPELL ANT SUBMITTED A LETTER OF ADJOURNMENT ON 28.08.2017 WHICH WAS NOT G RANTED TO HIM WITHOUT UNDERSTANDING THE REASON FOR THE ADJOURNMEN T. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT HE OUG HT TO HAVE VERIFIED THE REASONS GIVEN BY THE APPELLANT FOR SEEKING AN A DJOURNMENT BEFORE PASSING THE EX-PARTE ORDER. THEREFORE, THE O RDER PASSED BY THE LD. CIT(A) MAY BE SET ASIDE. 4. WITHOUT PREJUDICE TO ABOVE, ON THE MERITS, CIT(A): A. HAS NOT APPRECIATED ALL THE FACTS REGARDING AN ADDI TION OF RS.19,56,000/- MADE BY THE AO ON THE GROUND OF DISA LLOWANCE OF INTEREST ON AD-HOC BASIS. B. HAS ERRED IN CONFIRMING THE ACTION OF THE AO OF TRE ATING THE INCOME OF THE APPELLANT AT RS. NIL AS AGAINST THE L OSS OF RS.53,36,600/- DISCLOSED BY THE APPELLANT CO. IN TH E RETURN OF INCOME. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. ON PERUSAL OF THE GROUNDS OF APPEAL, THE FIRST GROUND O F APPEAL STATES THAT THE LD. CIT(APPEALS) HAS ERRED IN PASSING AN EX-PA RTE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN VIEW OF THE GROUND, THE LD. AR OF THE ASSESSEE, AT THE TIME OF HEARING , FILED AN AFFIDAVIT WHEREIN IT CONTAINS THE REASONS FOR WHICH TH E ASSESSEE WAS UNABLE TO APPEAR BEFORE THE LD. CIT(APPEALS). THAT ON SUBM ISSION OF THE SAME, THE LD. AR REQUESTED THAT ONE FINAL OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE AND MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(APPEALS) IN VIEW OF THE ADJUDICATION OF THE LEGAL RIGHTS AND LIABILITIES OF THE PARTIES THEREIN. 3. THE LD. DR CONCEDED TO THE PRAYER OF THE LD. AR OF THE ASSESSEE. 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD RIVAL C ONTENTIONS AND ALSO HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE AFFIDAVIT FILED AT T HE TIME OF HEARING BY THE ASSESSEE STATING REASONS FOR WHICH HE DID NOT A PPEAR BEFORE THE LD. CIT(APPEALS). IT HAS ALSO BEEN PRAYED BEFORE US THAT THE MATTER MAY BE 3 ITA NO. 723/PUN/2018 A.Y.2009-10 RESTORED TO THE FILE OF THE LD. CIT(APPEALS) IN VIEW OF THE E X-PARTE ORDER BEING PASSED. ON PERUSAL OF THE ORDER OF LD. CIT(APPEALS), WE FIND THAT THE CONTENTIONS OF THE ASSESSEE IS CORRECT. THE RIGHTS AND LIA BILITIES OF THE PARTIES ARE YET TO BE DETERMINED AND ADJUDICATED UPON. THEREFOR E, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE MATTER B ACK TO HIS FILE FOR ADJUDICATION IN COMPLIANCE WITH THE PRINCIPLES OF NATURAL JUSTICE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 07 TH DAY OF FEBRUARY, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 07 TH FEBRUARY, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE-5, PUNE. 4. THE PR. CIT, PUNE-4, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 4 ITA NO. 723/PUN/2018 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 0 6 .0 2 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 0 6 .0 2 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER