From Here On Communications P.Ltd, New Delhi V. ITO, Ward-9(2), New Delhi

ITA 80/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8438 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 07-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; TDS; Set aside
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 80/DEL/2019 ASSESSMENT YEAR: 2014-15 FROM HERE ON COMMUNICATIONS P. LTD. VS. ITO, WARD 9 (2), (NOW KNOWN AS DAIKO FROM HERE NEW DELHI ON COMMUNICATIONS P. LTD.), NO. 352, BHANU PRATAP KLHARI ESTATE, SULTANPUR MEHRAULI-GURGAON ROAD, NEW DELHI 110 030 (PAN: AABCF7027Q) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. SATISH AGGARWAL, CA REVENUE BY : MS. EKTA VISHNOI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 16.8.2018 PASSED BY THE LD. CIT(A)-3, DELHI RELATING TO ASSES SMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- 1. THAT THE EX-PARTE ORDER PASSED BY THE LD. CIT(A)-3 IS ARBITRARY, BIASED AND BAD IN LAW AND IN FACTS A ND CIRCUMSTANCES OF THE CASE IN SO FAR AS IT CONFIRMS THE ADDITIONS MADE IN THE ASSESSMENT ORDER. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING AN ASSESSMENT OF INCOME AT A SUM OF RS. 25,69,100/- AS AGAINST THE RETURNED LOSS OF RS. 1,67,540/- WITHOUT AFFORDING PROPER AND MEANING OPPORTUNITY TO REPRESENT ITS CASE. 3. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING AN ADDITION OF RS. 24,01,515/- MADE BY THE AO TO THE INCOME OF THE ASSESSEE ON THE BASIS OF FORM 26AS FOR TAX DEDUCTED AT SOURCE BY FOUR PARTIES 2 IGNORING THE SUBMISSIONS OF THE APPELLANT MADE BEFORE THE AO AND ON THE FACTS ON RECORD. 4. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING AN ADDITION OF RS. 15,71,354/- (OUT OF TOTAL ADDITI ON OF RS. 24,01,515/-) MADE BY THE AO TO THE INCOME OF THE ASSESSEE IGNORING THE FACT THAT THE AO HAD NOT APPRECIATED PROPERLY THE REPLY FILED BY THE TWO PARTIES (OUT OF 4 PARTIES) AS PER GIVEN BELOW AND I N NOT PROVIDING THE COPIES OF THE SAME TO THE ASSESS EE TO EXPLAIN / RECONCILE THE REPLIES FILED BY THE PAR TIES ON THE ISSUE. PARTY NAME AMOUNT REPLY FROM THE PARTIES TO WHOM NOTICE U/S. 133(6) ISSUED. M/S GOPAL CONSUMER WORLD 1,09,551/- M/S GOPAL CONSUMER WORLD HAS MADE PAYMENT TO THE ASSESSEE OF RS. 98596/- (109551-10955) ON 20.12.2013 VIDE CHEQUE NO. 001192 AFTER DEDUCTING THE TDS OF RS. 10955/-. GOPAL HOLIDAYS P. LTD. 14,61,803/- GOPAL HOLIDAY P. LTD. HAS MADE PAYMENT TO THE ASSESSEE BUT SUBSEQUENTLY THEY HAVE REVERSED THE PAYMENT. CORAM INDIA P. LTD. 5,49,261/- INSPECTOR WAS DEPUTED FOR VERIFICATION BUT HE HAS SUBMITTED REPORT WITH COMMENTS THAT THIS COMPANY IS 3 NOT EXIST ON THE ADDRESS. JAYPEE HEALTHCARE LTD. 2,80,900/- MAILED ON 20.12.2016 AND 21.12.2016 NO REPLY WAS SUBMITTED BY THE COMPANY. IN ABSENCE OF THE RELY FACTS COULD NOT BE VERIFIED. TOTAL 24,01,515/- 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS PASSED THE EXPARTE ORDER WITHOUT PROVIDI NG ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT OBSERVING TH E PRINCIPLE OF NATURAL JUSTICE AND A RESULT THEREOF THE ASSESSEE COULD NOT FILE THE ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE FILED A SMALL PAPER BOOK OF ADDITIONAL EVIDENCE CONTAINING PAGES 1-4 IN WHICH HE HAS ATTACHED THE COPY OF CERTIFICATE OF M/S GOPAL CONSU MERS WORLD CERTIFYING THAT DEDUCTION OF TDS OF RS. 10,955/- WAS MADE BY IT TWICE ONE AT THE DATE AND TIME OF PAYMENT AND AGAIN AT THE TIME OF R AISING BILL BY TEH APPELLANT; COPY OF CERTIFICATE OF M/S GOPAL HOLIDAY S (P) LTD. WHEREIN IT IS CLARIFIED THAT IT HAD REVERSED THE BILLS OF RS. 14, 61,803/- RAISED BY THE APPELLANT ON WHICH IT HAD DEDUCTED TDS OF RS. 1,46, 180/- AND COPY OF CERTIFICATE OF M/S JAYPEE HEALTHCARE LTD. WHEREIN I T IS CLARIFIED THAT IT HAD DEPOSITED EXCESS TDS OF RS. 28,090/- FOR THE MONTH OF MARCH, 2014 ON ACCOUNT OF THE APPELLANT AND STATED THAT THESE ADDI TIONAL EVIDENCES ARE VERY MUCH ESSENTIAL TO ADJUDICATE THE ISSUES IN DIS PUTE BY THOROUGHLY 4 EXAMINING THE SAME AT THE LEVEL OF THE ASSESSING OF FICER. HENCE, HE REQUESTED TO DIRECT THE ASSESSING OFFICER TO THORO UGHLY CONSIDER THESE ADDITIONAL EVIDENCES AND DECIDE THE ISSUES IN DISPU TE AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS GIVEN VARIOUS OPPORT UNITIES TO THE ASSESSEE, BUT THE ASSESSEE REMAINED NON-COOPERATIVE . 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I AM OF THE VIEW THAT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CIT(A) AS WELL AS BEFORE THE AO. I FIND THAT LD. CIT(A) HAS PASSED THE EXPARTE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEA RD AND WITHOUT OBSERVING THE PRINCIPLE OF NATURAL JUSTICE AND A RE SULT THEREOF THE ASSESSEE COULD NOT FILE THE ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A). BEFORE ME, LD. COUNSEL FOR THE ASSESSEE FILED A SMALL PAPER BO OK OF ADDITIONAL EVIDENCE CONTAINING PAGES 1-4 IN WHICH HE HAS ATTAC HED THE COPY OF CERTIFICATE OF M/S GOPAL CONSUMERS WORLD CERTIFYIN G THAT DEDUCTION OF TDS OF RS. 10,955/- WAS MADE BY IT TWICE ONE AT TH E DATE AND TIME OF PAYMENT AND AGAIN AT THE TIME OF RAISING BILL BY TE H APPELLANT; COPY OF CERTIFICATE OF M/S GOPAL HOLIDAYS (P) LTD. WHEREIN IT IS CLARIFIED THAT IT HAD REVERSED THE BILLS OF RS. 14,61,803/- RAISED BY THE APPELLANT ON WHICH IT HAD DEDUCTED TDS OF RS. 1,46,180/- AND COPY OF CERT IFICATE OF M/S JAYPEE HEALTHCARE LTD. WHEREIN IT IS CLARIFIED THAT IT HAD DEPOSITED EXCESS TDS OF RS. 28,090/- FOR THE MONTH OF MARCH, 2014 ON ACCOUN T OF THE ASSESSEE, IN MY VIEW THESE ADDITIONAL EVIDENCES ARE VERY MUCH ES SENTIAL TO ADJUDICATE THE ISSUES IN DISPUTE BY EXAMINING THE SAME AT THE LEVEL OF THE ASSESSING OFFICER. HENCE, I ADMIT THESE ADDITIONAL EVIDENC ES AND SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DI RECTIONS TO CONSIDER THESE ADDITIONAL EVIDENCES AND ANY OTHER EVIDENCE TO BE F ILED BY THE ASSESSEE AND THEN DECIDE THE ISSUES IN DISPUTE AFRESH, AFTE R GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSE E THROUGH HIS COUNSEL IS DIRECTED TO FILE THE ADDITIONAL EVIDENCES AND ANY OTHER EVIDENCES WITH 5 THE AO AT THE TIME OF PROCEEDINGS TO SUBSTANTIATE ITS CASE AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11/10/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 11/10/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES