M/s. Shree Ram Enterprises, New Delhi V. ITO, New Delhi

ITA 778/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0142 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Keywords: Opportunity of being heard

Judgement Text

1 ITA NO. 778/DEL/14 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEMBER I.T.A .NO.-778/DEL/2014 (ASSESSMENT YEAR-2009-10) SHREE RAM ENTERPRISES 11A/17, WEA, KAROL BAGH NEW DELHI ABJFS7555G (APPELLANT) VS ITO WARD-33(2) NEW DELHI (RESPONDENT) APPELLANT BY SH. ANOOP SHARMA, ADV RESPONDENT BY SH. ROBIN RAWAL, JCIT ORDER PER S. V. MEHROTRA, AM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R DATED 11/12/2013 OF CIT(A)- XXVI, NEW DELHI, IN APPEAL NO. 403/2011-12 2. THE ASSESSEE FIRM, IN THE RELEVANT ASSESSMENT YE AR, WAS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF CORRUGATED BOXES AND PLASTIC CONTAINERS. THE ASSESSEE WAS RUNNING ITS BUSINESS FROM PANT NAG AR, TEHSIL, DISTT UTTRAKHAND AND COMMENCED ITS BUSINESS ON 17 TH AUGUST 2005 AND THIS IS THE FOURTH YEAR OF THE BUSINESS OF THE ASSESSEE. THE ASSESSEE HAD FILED R ETURN OF INCOME DECLARING NIL INCOME. THE ASSESSING OFFICER DENIED THE ASSESSEE S CLAIM U/S 80 IC ON THE GROUND THAT THE AUDIT REPORT IN FORM 10CCB WAS NOT SUBMITTED, HE OBSERVED THAT THE CERTIFICATE SUBMITTED BY THE AUDITOR VIDE REPLY DATED 19/12/2011 WAS NOT IN THE SPECIFIED FORMAT AND BEREFT OF THE DETAILS REQUIRED TO BE SUBMITTED IN THE SPECIFIED DATE OF HEARING 25.06.2015 DATE OF PRONOUNCEMENT 30.06.2015 2 ITA NO. 778/DEL/14 REPORT. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL EX-PARTE. BEING AGGRIEVED THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A)-XXVI, NEW DELHI WAS NOT JUSTIFIED IN PASSING EX-PARTE ORD ER PARTICULARLY WHEN THE CAUSE AND REASON WAS GIVEN BY THE ASSESSEES AUTHOR IZED PERSON APPEARED FOR ADJOURNMENT. 2. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRM ING DISALLOWANCES OF CLAIM U/S 80IC OF RS.1484868/- ON ACCOUNT OF NON FILING O F AUDIT REPORT IN PRESCRIBED FROM 10CCB STATING THAT THE SAME WAS MAN DATORY TO FILE. 3. THAT THE ASSESSEE CRAVE LEAVE TO ADD OR DELETE ANY GROUND OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT APPE LLATE PROCEEDINGS ARE CONTINUATION OF ASSESSMENT PROCEEDINGS AND, THEREF ORE, SINCE THE ASSESSEES APPEAL WAS DECIDED EX-PARTE, THE ASSESSES MAY BE PERMITTED TO FILE THE REPORT IN FORM 10CCB BEFORE TRIBUNAL OR THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) TO PROVIDE OPPORTUNITY TO ASSESSEE. HE FURT HER SUBMITTED THAT THE OBSERVATIONS MADE IN PARA 5.2 BY LD. CIT(A) MAY BE EXPUNGED BECAUSE THEY HAVE NO RELEVANCE WITH THE CURRENT ASSESSMENT YEARS PROC EEDINGS. 4. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND FIND THAT LD. CIT(A) HAS DECIDED THE APPEAL EX-PARTE AND HAS DENI ED THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IC SOLELY ON THE GROUND OF NON-SUBM ISSION OF AUDITORS REPORT IN SPECIFIC FORM 10CCB. IT IS THE FOURTH YEAR IN WHICH THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IC. THE DEDUCTION WAS DENIED PUREL Y ON TECHNICAL GROUND. 5. UNDER SUCH CIRCUMSTANCES, I SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR DE NOVO ADJUDICATION OF APPEAL AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. FURTHER I FIND THAT IN PARA 5.2 THE LD. CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO TAKE I MMEDIATE ACTIONS AS PER LAW FOR PRECEDING AND SUBSEQUENT YEAR OBSERVING AS UNDER:- 3 ITA NO. 778/DEL/14 5.2 NOTHING HAS BEEN BROUGHT ON THE RECORD BY THE APPELLANT TO CONTROVERT THE FINDING OF THE AO. IN VIEW OF ABOVE, IT IS HEL D THAT THE AO HAS RIGHTLY REJECTED THE CLAIM U/S 80IC ON THE FACT THAT THE AP PELLANT HAS FILED TO COMPLY WITH THE ELIGIBILITY CONDITIONS REQUIRED FOR CLAIMI NG DEDUCTION U/S 80IC AS IT IS ENGAGED IN THE MANUFACTURING OF ARTICLE OR THING S SPECIFIED IN SCHEDULE XIII OF THE INCOME-TAX ACT AND ALSO ON THE FACTS T HAT THE AUDIT REPORT WAS NOT IN PROPER FORMAT. TAKING INTO ACCOUNT THE FACT S AS MENTIONED ABOVE AND IN IMPUGNED ORDER AND DECISION CITED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE ACTION OF THE AO IS JUSTIFIED. ACCORDINGL Y, THE DISALLOWANCE OF DEDUCTION U/S 80IC IS SUSTAINED . THE AO MAY CONSIDER TAKING REMEDIAL ACTION AS PER THE LAW IN PROCEEDING AND SUBSEQUENT YEARS TO WITHDRAW THE DEDUCTION U/S 80-IC AS PRIMA-FACIE IT IS NOT ADMISS IBLE. 6. THESE OBSERVATIONS, IN BOLD NOTED ABOVE WERE WHO LLY UNCALLED FOR BECAUSE THE ASSESSEES APPEAL WAS DECIDED EX-PARTE AND MORE OVER, THE OBSERVATIONS DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. I, THEREF ORE, EXPUNGE THESE OBSERVATIONS FROM PARA 5.2 OF LD. CIT(APPEAL) ORDER. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH OF JUNE 2015. SD/- (S. V. ME HROTRA) ACCOUNTANT MEMBER DATED:- 30 /06/2013 *R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT A SSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 778/DEL/14 DATE 1. DRAFT DICTATED ON 25.06.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 26.06.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS .06.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK .06.2015 PS 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. 5 ITA NO. 778/DEL/14