M/s. Di-Su Technologies Pvt.Ltd., Baroda V. The Income tax Officer,Ward-1(2), Baroda

ITA 770/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80346 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 10-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA
• Assessee Lawyers: NIKITA BRAHMBHATT
• Keywords: Business expenditure; Opportunity of being heard; Principle of natural justice; Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI , A CCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER . / I.T.A. NO . 770/AHD/2011 ( / ASSESSMENT YEAR : 2004 - 04 ) M/S.DI - SU TECHNOLOGIES PVT.LTD. B - 52, NEHA APARTMENT JUHU TARA ROAD SANTACRUZ MUMBAI (W) 49 / VS. THE ITO WARED - 1(2) BARODA ./ ./ PAN/GIR NO. : AABCD 3118 N ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS.NIKITA BRAHMBHATT, AR / RESPONDENT BY : SHRI B.KULSHRESTHA, SR.DR / D ATE OF HEARING 12/09/2014 / DATE OF PRONOUNCEMENT 26/09/2014 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - I, BARODA ( CIT (A) IN SHORT ) DATED 27.1.2011 PERTAINING TO ASSESSMENT YEAR (AY) 2004 - 05 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ALL THE GROUNDS OF APPEAL IN THIS APPEAL ARE MUTUALLY EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER. 1. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN PASSING THE ORDER EX - PARTE. ITA NO .770/AHD/2014 M/S. DI - SU TECHNOLOGIES PVT.LTD. VS. ITO ASST.YEAR 2004 - 05 - 2 - 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN PASSING THE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING DISALLOWANCE OF DEDUCTION CLAIMED U/S.80IB OF THE ACT OF RS.3,48,942/ - ON THE GROUND THAT THE ASSESSEE DID NOT EMPLOY AT LEAST 20 PERSONS DESPITE THE FACT THAT THE ASSESSEE CARRIED OUT MANUFACTURING OPERATIONS WITH THE AID OF POWER. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS.2,13,123/ - BEING THE OMISSION PAID ON THE GROUND THAT THE ASSESSEE HAS NO T COME UP WITH ANY JUSTIFIABLE EXPLANATIONS TO CONVINCE THAT THE PAYMENT WAS REQUIRED TO BE MADE FOR BUSINESS EXPEDIENCY. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING DISA LLOWANCE OF RS.14,00/ - BEING THE COMMISSION PAID FOR BOMBAY OFFICE ON THE GROUND THAT IT WAS FOUND TO BE GENUINE BUSINESS EXPENDITURE. 6. YOUR APPELLANT CRAVES THE RIGHT TO ADD TO OR ALTER, AMEND, SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS O F APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143(3) OF THE I NCOME TAX ACT ,1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS FRAMED VIDE ORDER DATED 27/11/2006, THEREBY THE ASSESSING OFFICER (AO IN SHORT ) MADE VARIOUS ADDITIONS IN RESPECT OF DISALLOWANCE OF DEDUCTION U/S.80IB OF THE ACT, DISALLOWANCE OF EXPENDITURE CLAIMED TREATING THAT NOT MADE FOR BUSINESS EXPEDIENCY AND DISALLOWANCE OF THE COMMISSION FOR BOMBAY OFFICE. AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A). NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD.CIT(A) ON VARIOUS DATES AND, THEREFORE, THE LD.CIT(A) PROCEEDED TO DECIDE THE APPEAL IN ABSENCE OF THE ASSESSEE AND DISMISSED THE SAME. ITA NO .770/AHD/2014 M/S. DI - SU TECHNOLOGIES PVT.LTD. VS. ITO ASST.YEAR 2004 - 05 - 3 - 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE MS.NIKITA BRAHMBHATT SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. SHE SUBMITTED THAT THERE WAS CHANGE IN THE ADDRESS OF THE ASSESSEE AND THE ADDRESS GIVEN IN F ORM NO.35 WAS 39/B, ARUNODAY SOCIETY, ALKAPURI, BARODA, WHEREAS THE ASSESSEE HAS SHIFTED TO B - 52, NEHA APARTMENT, JUHU TARA ROAD, SANTACRUZ, MUMBAI(W) 49. SHE SUBMITTED THAT IN THE INTEREST OF JUSTICE, AN OPPORTUNITY BE GRANTED TO THE ASSESSEE. SHE FUR THER SUBMITTED THAT THE ASSESSEE HAS A VERY STRONG CASE ON MERIT AND THERE IS EVERY LIKELIHOOD OF SUCCESS. SHE CONTENDED THAT ASSESSEE WOULD SUFFER IRREPARABLE LOSS, RESULTING INTO GROSS MISCARRIAGE OF JUSTICE. SHE SUBMITTED THAT IN THE INTEREST OF PRINC IPLE OF NATURAL JUSTICE, THE IMPUGNED ORDER OF LD.CIT(A) BE SET ASIDE AND THE APPEAL MAY BE RESTORED TO HIS FILE FOR DECISION AFRESH. 4. ON THE CONTRARY, SR.DR SUPPORTED THE ORDER OF THE LD.CIT(A) AND SUBMITTED THAT NO REASONABLE CAUSE IS SHOWN BY THE A SSESSEE FOR NON - APPEARANCE BEFORE THE LD.CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS GIVEN VARIOUS OPPORTUNITIES TO THE AS SESSEE AS RECORDED IN PARA - 2 OF HIS ORDER. THE ASSESSEE OUGHT TO HAVE INTIMATED THE LATEST ADDRESS AND INTERESTINGLY EVEN IN FORM NO.36, THE ADDRESS IS GIVEN AS WAS GIVEN IN FORM NO.35. FURTHER, THE ASSESSEE OUGHT TO HAVE BEEN VIGILANT ABOUT THE STATUS O F THE CASE. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT THE ASSESSEE WOULD ITSELF APPEAR BEFORE ITA NO .770/AHD/2014 M/S. DI - SU TECHNOLOGIES PVT.LTD. VS. ITO ASST.YEAR 2004 - 05 - 4 - THE LD.CIT(A) AND ASSURE THAT NO UNNECESSARY ADJOURNMENT WILL BE SOUGHT AND WOULD ALSO CO - OPERATE IN THE APPELLATE PROCEEDINGS. THE LD.COUNSEL F OR THE ASSESSEE ALSO CONTENDED THAT THE ASSESSEE WOULD SUFFER GROSS MISCARRIAGE OF JUSTICE , IF HE IS NOT ALLOWED TO REPRESENT HIS CASE. 5.1. AFTER CONSIDERING THE TOTALITY OF THE CASE AND THE ASSURANCE GIVEN BY THE LD.COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, AN OPPORTUNITY BE GRANTED TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE FIRST APPELLATE AUTHORITY [I.E.BEFORE LD.CIT(A)], THEREFORE WE HEREBY RESTORE THIS APPEAL TO THE FILE OF LD.CIT(A) FOR DECISION AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO COLLECT A COPY OF THIS ORDER AND APPROACH THE LD.CIT(A) FOR FIXING THE DATE OF HEARING OF THE APPEAL. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HEREINABOVE AT CAPTION PAGE SD / - SD/ - ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 26 / 09 /20 14 . . , . . ./ T.C. NAIR, SR. PS ITA NO .770/AHD/2014 M/S. DI - SU TECHNOLOGIES PVT.LTD. VS. ITO ASST.YEAR 2004 - 05 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RES PONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - I, BARODA 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 22.9.14 (DICTATION - PAD 7 - PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.9.14 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 26.9.14 6. DATE ON WHICH THE FILE GO ES TO THE BENCH CLERK 26.9.14 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER .. 9 . DATE OF DESPATCH OF THE ORDER