ABC Cargo Movers, New Delhi V. ACIT(OSD), Ward-62(5), New Delhi

ITA 8002/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4470 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 17-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: GARGI SETHEE
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

1 ITA NO. 8002/DEL /2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2 ) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 8002/DEL/2018 ( A.Y 2015-16) ABC CARGO MOVERS 9524, GALI NO. 13, MULTANI DHANDA, PAHAR GANJ, NEW DELHI PIN 110055 PAN: AAMFA9197L (APPELLANT) VS ACIT (OSD) WARD-62(5) NEW DELHI (RESPONDENT) APPELLANT BY MS. GARGI SETHEE, ADV RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 14/11/2018 PASSED BY CIT(A)-20, NEW DELHI FOR ASSESSMENT YEAR 2015-16. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. WHETHER ON THE FACTS AND UNDER THE CIRCUM STANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-20, N EW DELHI WAS JUSTIFIED IN DISMISSING THE APPEAL WITHOUT ALLOWING ANY REASONAB LE AND APPROPRIATE OPPORTUNITY AND IGNORING ALL THE SUBMISSIONS MADE D URING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. WHETHER ON THE FACTS AND UNDER THE CIRCUMSTANCES . OF THE CASE AND IN LAW, DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 26.02.2020 2 ITA NO. 8002/DEL /2018 THE COMMISSIONER OF INCOME TAX (APPEALS)-20, NEW DE LHI WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF RS. 1,98,180/- ON AC COUNT OF COMMISSION TO BOOKING AGENT MERELY FOR THE REASON OF NON-COMPLIA NCE OF NOTICE U/S. 133(6 OF THE ACT BY THE AGENT. 3. WHETHER ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-20, NEW DE LHI WAS JUSTIFIED IN MAKING ARBITRARY DISALLOWANCE OF ENTIRE CLAIM ON AC COUNT OF REBATE & REFUND OF RS. 13,29,622/- WITH-THE OBSERVATION THAT SUBMIS SIONS WITH REFERENCE TO NATURE OF EXPENSES CLAIM UNDER THE CAPTIONED HEAD W AS GENERAL IN NATURE. 3. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN T HE BUSINESS OF GOODS TRANSPORT HAVING ITS OPERATION AT DELHI-RAJKOT(GUJ. )-DELHI. INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2015-16 WAS FILED ON 25.09. 2015 DECLARING TAXABLE INCOME OF RS. 11,15,403/-. THE ASSESSMENT WAS COMPL ETED U/S 143(3) OF THE INCOME TAX ACT, AT TOTAL INCOME OF RS. 26,43,202/- THEREBY MAKING ADDITION OF RS. 1,98,180/- TOWARDS COMMISSION, RS. 13,29,622 TO WARDS DISALLOWANCE IN RESPECT OF REBATE AND REFUNDS CLAIMED BY THE ASSESS EE. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GI VEN ANY OPPORTUNITY OF HEARING AND PASSED EX-PARTE ORDER WITHOUT DISCUSSIN G MERITS OF THE CASE. THEREFORE, THE LD. AR SUBMITTED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUES ON MERIT . 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON 3 ITA NO. 8002/DEL /2018 RECORD. IT IS PERTINENT TO NOTE THAT THE CIT(A) D ISMISSED THE APPEAL ON THE GROUND OF FAILURE THAT ON THE PART OF THE ASSESSEE FAILED TO GIVE ANY REASONABLE EXPLANATION AGAINST THE ADDITIONS MADE BY THE ASSES SING OFFICER TO ITS TOTAL INCOME. FROM THE PERUSAL OF THE ORDER, THE CIT(A) HAS ALSO COMMENTED ON THE MERIT THAT THE ASSESSEE HAS NOT SUBSTANTIATED ITS C LAIM IN RESPECT OF REBATE AND REFUND. IT CAN BE SEEN FROM THE ASSESSMENT ORDER TH AT THE ASSESSING OFFICER HAS NOT DEMONSTRATED AS TO WHY THE COMMISSION RECEIVED BY SUSHIL KUMAR FROM THE ASSESSEE HAS TO BE ADDED TO THE INCOME OF THE ASSES SEE. FURTHER, THE CLAIM OF REBATE AND REFUND WAS ALSO NOT CORRECTLY EXAMINED B Y THE ASSESSING OFFICER. THE CIT(A) ALSO HAS NOT TAKEN COGNIZANCE OF THESE F ACTS AND DECIDED BOTH THE ISSUES WITHOUT GIVING ANY PROPER FINDING. THEREFOR E, IT WILL BE APPROPRIATE TO REMAND BACK BOTH THE ISSUES TO THE FILE OF THE CIT( A). NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWI NG PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBRUARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 8002/DEL /2018 DATE OF DICTATION 24.02. 2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 26.02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 26.02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26.02.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER