AKS International Ltd, New Delhi V. ITO, Ward-2(1), New Delhi

ITA 8235/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3955 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 27-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Principle of natural justice; Bad and doubtful debts
• Section: 147; 148; 144

Judgement Text

1 ITA NO. 8235/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. 8235/DEL/2018 ( A.Y 2013-14) AKS INTERNATIONAL LTD. 403-A, 4 TH FLOOR, MODI TOWER, 98, NEHRU PLACE NEW DELHI PIN: 110019 PAN: AAACA5822H (APPELLANT) VS ITO WARD-2(1) C. R. BUILDING NEW DELHI (RESPONDENT) APPELLANT BY SH. KAPIL GOEL, 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 13/01/2017 PASSED BY CIT(A)-32, NEW DELHI FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN DISMIS SING THE APPEAL OF THE ASSESSEE. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN COMPLE TING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY RELATING T O INVALIDITY DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 02.03.2020 2 ITA NO. 8235/DEL/2018 OR ILLEGALITY OF ACTION UNDER SECTION 143 (3). ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN UPHOLD ING THE ADDITION OF RS. 10,38,563/- WITHOUT CONSIDERING AND DECIDING THE CASE OF MERIT EVEN THOUGH SUCH GROUND WAS TAKEN. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN COMPLE TING THE ASSESSMENT UNDER SECTION 144 AND THEREBY CONFIRMING THE SAME EVEN THOUGH THE CONDITIONS NECESSARY FOR COMPL ETING OF SUCH ASSESSMENT HAVE NOT BEEN FULFILLED. GROUNDS.. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APP EAL OF THE ASSESSEE. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN COMPLETING THE APP EAL WITHOUT GIVING PROPER OPPORTUNITY RELATING TO INVALIDITY OR ILLEGA LITY OF ACTION UNDER SECTION 143 (3). ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THE NOTICE UNDER SECTION 148 WAS SERVED BY IMPLICATION EVEN AT LEAST WITHOUT MEN TIONING AND VERIFYING THE DATE ON WHICH THE NOTICE DATED 25/03/ 2011 WAS HANDLED OVER TO THE POSTAL DEPARTMENT FOR SERVICE. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT NOTIC E MAY BE PRESUMED TO HAVE BEEN SERVED WITHOUT VERIFYING OF ANY PROOF OF SERVICE FROM THE POSTAL DEPARTMENT ARE FROM ANYWHERE ELSE. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN RELYING ON THE JUDGEME NT IN THE CASE OF MAYAVATI IN RESPECT OF SERVICE SINCE THE FACTS ARE COMPLETELY DIFFERENT. 3 ITA NO. 8235/DEL/2018 ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN NOT HOLDING THE 14 8 ACTION AND THEREBY ASSESSMENT ILLEGAL SINCE THE APPROVAL FOR I SSUING NOTICE UNDER SECTION 147 HAS BEEN TAKEN FROM CIT WHEREAS SUCH AP PROVAL IN THIS CASE WAS LIABLE TO BE TAKEN FROM JOINT COMMISSIONER OF INCOME TAX SINCE THE ORIGINAL ASSESSEMENT WAS COMPLETED UNDER SECTION 143(1). ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN UPHOLDING THE ADDITION OF RS. 1,30,36,780/- WITHOUT CONSIDERING AND DECIDING THE CASE OF MERIT EVEN THOUGH SUCH GROUND WAS TAKEN. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN HOLDING THAT THE A SSESSEE HAS RAISED ONLY ONE GROUND IN THE APPEAL OF NON RECEIPT OF THE NOTICE UNDER SECTION 148 HAS BEEN RAISED IN GROUND NO. 1 OF THE APPEAL APPARENT FROM THE APPEAL ORDER ITSELF. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND TH E LAW, THE CIT (A) WAS INCORRECT AND UNJUSTIFIED IN COMPLETING THE ASS ESSMENT UNDER SECTION 144 AND THEREBY CONFIRMING THE SAME EVEN TH OUGH THE CONDITIONS NECESSARY FOR COMPLETING OF SUCH ASSESSM ENT HAVE NOT BEEN FULFILLED. 10. ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND THE LAW, THE ACTION UNDER SECTION 148 IS ILLEGAL SINCE THE NOTICE HAS B EEN SENT BY THE ITO 15(1) WHEREAS I AM ASSESSED BY THE ITO 15(4). 3. THE ASSESSEE COMPANY IS REGISTERED AS NBFC WITH RESERVE BANK OF INDIA AND ITS MAIN ACTIVITIES ARE PROVIDING LOANS TO INDI VIDUALS AND TO THE COMPANIES AS WELL AS INVESTMENT IN UNLISTED AND LISTED SHARES . THE ASSESSEE COMPANY IS ALSO INVOLVED IN COLLABORATION OF PROPERTY DEVELOPM ENT. THE ASSESSEE COMPANY FILED RETURN OF INCOME ON 29/9/2013 DECLARING INCOM E OF RS. 2,00,410/-. THE ASSESSING OFFICER ASSESSED THE INCOME OF THE ASSESS EE AT RS. 12,38,973/- BY MAKING ADDITION OF RS. 1,55,000/- U/S 68 OF THE ACT AND ALSO RS. 8,83,563/- ON ACCOUNT OF PROVISIONS OF BAD DEBTS. 4 ITA NO. 8235/DEL/2018 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 GIV EN OPPORTUNITY OF HEARING TO THE ASSESSEE AND PASSED EX-PARTE ORDER. 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 RECORD. FROM THE PERUSAL OF THE ORDER OF THE CIT(A) CAN BE SEEN THAT THE NOTICE WERE ISSUED TO THE ASSESSEE AND NONE APPEARED BEFO RE THE CIT(A) DESPITE GIVING SEVERAL OPPORTUNITY. THE ASSESSEE HAS NOT MADE OUT ANY CASE AS REGARDS TO THE NON APPEARANCE BEFORE THE CIT(A). THEREFORE, WE AR E IMPOSING COST OF RS. 5,000/- WHICH SHOULD BE PAID BY THE ASSESSEE TO THE PRIME MINISTERS RELIEF FUND. THE CIT(A) HAS NOT DISCUSSED THE MERIT OF THE CASE AND PASSED EX-PARTE ORDER. IT WILL BE APPROPRIATE TO REMAND BACK THIS ISSUE IN ENTIRETY TO THE FILE OF THE CIT(A). NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEA L OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02/03/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 5 ITA NO. 8235/DEL/2018 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 24.02 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.02 .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 02.03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 02.03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02.03.2020 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