M/s. Astha Studio Pve Ltd., New Delhi V. ITO, New Delhi

ITA 778/DEL/2015

• Counselvise Citation: 77820114 RSA 2015
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-07-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CITANDRAKER
• Keywords: Depreciation; Opportunity of being heard; Unabsorbed depreciation; Revenue expenditure; Capital expenditure
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 778 /DEL/201 5 : ASSTT. YEAR : 2011 - 12 M/S ASTHA STUDIO PVT. LTD. C - 95, SOUTH EXTN., PART - II NEW DELHI - 110049 VS INCOME TAX OFFICER, WARD - 2 (2) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AECA7710L ASSESSEE BY : NONE REVENUE BY : SH. J. P. CITANDRAKER , SR. DR DATE OF HEARING : 20 .0 7 .2015 DATE OF PRONOUNCEMENT : 05 .08 .2015 ORDER THIS IS AN APPEAL BY THE AS SESSEE AGAINST THE ORDER DATED 12 .1 1 .2014 OF LD. CIT (A) - V , NEW DELHI . 2 . DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, THEREFORE, THE APPEAL IS DECIDED EX - PARTE AFTER HEARING THE LD. DR , ON MERIT. 3 . FOLLOWING GROUNDS HAVE B EEN RAISED IN THIS APPEAL: 1. THE ORDER OF THE LEARNED CIT(A) IS BAD IN LAW AND ON THE FACTS OF THE CASE. 2. THAT THE ASSESSEE HAS BEEN REGULARLY APPEARING BEFORE THE LEARNED APPELLATE AUTHORITIES ON THE FIXED OR ADJOURNED DATES. ITA NO.1014 /DEL /2015 DILBAG SINGH 2 3. THAT THE LAST FIXED DATE WAS 5.11.2014 AND ON THE SAID D ATE AN ADJOURNMENT APPLICATION WAS MADE AND THE APPEAL WAS ADJOURNED TO 17.11.2014 ON THE LETTER ITSELF. 4. THAT THE ASSESSEE APPEARED ON 17.11.2014 FOR THE HEARING AND WAS TOLD THAT THE CASE HAS BEEN DECIDED EX - PARTE B ECAUSE NO RECORDING OF ADJOURNMENT WAS MADE IN THE ORDER SHEET ON 5.11.2014. 5. THAT WITHOUT PREJUDICE TO GROUND NOS. 1 TO 4 IT MAY BE STATED THE DISALLOWANCE OF TDS OF RS.10,80,000/ - UNJUST AND ARBITRARY. 6. THAT THE TREATMENT OF MEMBERSHIP FEE OF RS.1, 10,300/ - AS CAPITAL EXPENDITURE INSTEAD OF REVENUE EXPENDITURE IS UNCALLED FOR. 7. THAT THE ASSESSEE CRAVES LEAVES TO ADD, AMEND, OR WITHDRAW ANY GROUND OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF APPEAL. 4 . FROM THE ABOVE GROUNDS IT APPEARS THAT THE ASSESSEE IS AGGRIEVED AGAINST THE EX - PARTE ORDER PASSED BY THE LD. CIT(A). 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E - FILED RETURN OF INCOME ON 19.09.2011, DECLARING NIL INCOME. HOWEVER, THE ASSES SEE HAD PAID TAX U/S 115JB ON BOOK PROFIT S OF RS. 7,77,098/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY , THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS. 10,55,182/ - AND AFTER ALLOWING THE BROUGHT FORWARD BUSINESS LOSS & UNABSORBED DEPRECIATION , THE NET TAXABLE INCOME WAS DETERMINED AT NIL. THE AO ALSO REJECTED THE CLAIM OF TDS OF RS. 10,80,000/ - . ITA NO.1014 /DEL /2015 DILBAG SINGH 3 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DECIDED THE APPEAL EX - PARTE BY OBSERVING IN PARA 3 OF THE IMPUGNED ORDER AS UNDER: 3. THE APPEAL WAS FIRST FIXED FOR HEARING BY ISSUE OF NOTICE DATED 07.07.2 0 14, FIXING THE DATE OF HEARING AS 21.07.2014. ON THE SAID DATE, AN ADJOURNMENT APPLICATION WAS FILED, REQUESTING FOR ADJOURNMENT. ACCORDINGLY, THE CASE WAS ADJOURNED FOR 04.08.2014. HOWEVER, AGAIN ON 04.08.2014, FURTHER ADJOU RNMENT WAS SOUGHT, WHICH REQUEST OF THE APPELLANT WAS ACCEDED TO AND THE NEXT HEARING WAS FIXED FOR 21.08.2014. BUT ONCE AGAIN ON 21.08.2014, ANOTHER ADJOURNMENT WAS REQUESTED FOR, WHICH WAS ALLOWED UPTO 23.09.2014. ON 23.09.2014 NEITHER ANYBODY ATTENDED N OR WAS ANY ADJOURNMENT APPLICATION RECEIVED. THE APPEAL WAS AGAIN FIXED FOR HEARING AS PER THE FOLLOWING NOTICES: S. NO. DATE OF NOTICE DATE FIXED FOR HEARING REMARKS 1. 25.09.2014 09.10.2014 ADJOURNED TO 27.10.2014 ON REQUEST. NONE APPEARED ON 27.10.201 4 2. 28.10.2014 05.11.2014 NONE ATTENDED 7 . DURING THE COURSE OF HEARING, THE LD. DR SUPPORTED THE ORDER OF THE AO AND FURTHER SUBMITTED TH AT SINCE THE ASSESSEE DID NOT CO - OPERATE THE LD. CIT(A) HA D NO ALTERNATIVE EXCEPT TO DECIDE THE CASE EX - PARTE. 8 . I HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) ALTHOUGH MENTIONED THAT NOTICE OF HEARING FOR ITA NO.1014 /DEL /2015 DILBAG SINGH 4 05.1 1.2014 WAS ISSUED ON 28.10.2014, H OW EVER, IT IS NOT BROUGHT ON RECORD AS TO WHETHER THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, SINCE THE LD. CIT(A) DECIDED THE APPEAL EX - PARTE WITHOUT BRINGING ON RECORD THAT THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE , I DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE SAME TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVID ING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 05 /0 8 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 05 /0 8 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR