M/s AMCO Industries Enterprises P. Ltd., Ludhiana V. DCIT, C-1, Ludhiana

ITA 83/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2026 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-08-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 28-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VEENA GOGNA ASSISTANT
• Keywords: Opportunity of being heard; Additional evidence; Reassessment proceedings; Set aside
• Section: 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 83/CHD/2019 ASSESSMENT YEAR : 2009-10 M/S AMCO INDUSTRIAL ENTERPRISES P.LTD., E-161, PHASE-IV, FOCAL POINT, LUDHIANA. VS THE DCIT, CIRCLE- 1, LUDHIANA. PAN /TAN NO: AAHCA2339Q APPELLANT RESPONDENT ! ASSESSEE BY : SMT. VEENA GOGNA, ASSISTANT ' ! REVENUE BY : SMT. CHANDERKANTA, SR.DR # $ % DATE OF HEARING : 21.08.2019 &'() % D ATE OF PRONOUNCEMENT : 06.09.2019 )-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 27.11.20 15 OF CIT(A)-1 LUDHIANA PERTAINING TO 2009-10 ASSESSMENT YEAR IS ASSAILED ON VARIOUS GROUNDS ON MERIT INCLUDING GROU ND NO. 1 ON WHICH THE PARTIES WERE HEARD. ACCORDINGLY, THE SAID GROUND IS REPRODUCED HEREUNDER : THAT THE ORDER ANNOUNCED IS BAD AND AGAINST THE FA CTS AND LAW OF THE CASE. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATI ON WAS MOVED ON BEHALF OF THE ASSESSEE. OFFICE ASSISTANT W AS PRESENT TO TAKE A DATE. HOWEVER, CONSIDERING THE F ACT THAT ITA 83 /CHD/2019 A.Y. 2009-10 PAGE 2 OF 4 THE IMPUGNED ORDER HAS BEEN PASSED WHEREIN THE ASSE SSEE FAILED TO PARTICIPATE IN THE PROCEEDINGS, THE LD. S R.DR WAS REQUIRED TO ADDRESS. THE LD. SR.DR REFERRING TO PA GE 5 OF THE ORDER SUBMITTED THAT COUNSEL REPRESENTING THE ASSES SEE MERELY SOUGHT ADJOURNMENT FOR ONE REASON OR THE OTH ER, HOWEVER, FAILED TO PARTICIPATE IN THE PROCEEDINGS. IT WAS HER SUBMISSION THAT EVEN AT THE ASSESSMENT STAGE, LACK OF REPRESENTATION IS EVIDENT AS THE ORDER WAS PASSED B Y THE AO U/S 144 OF THE ACT. 3. A PERUSAL OF THE RECORD SHOWS THAT BEFORE THE CI T(A), THE ASSESSEE WAS REPRESENTED BY SHRI AJAY PAL SINGH . THE PRESENT ADJOURNMENT HAS ALSO BEEN MOVED BY SHRI AJA Y PAL SINGH ON THE GROUNDS THAT NECESSARY SUBMISSION IS NOT YET COMPLETE. THE PRESENT APPEAL HAS BEEN FILED ON 28.01.2019. TILL DATE NO DOCUMENTS HAVE BEEN FILED IN SUPPORT O F THE CLAIM. THE RECORD SHOWS THAT THE APPEAL WAS FIXED F OR HEARING ON 13.06.2019. ON THE SAID DATE, THE ASSES SEE REMAINED UNREPRESENTED. THE APPEAL WAS ADJOURNED I N ORDER TO AFFORD ONE MORE OPPORTUNITY TO THE ASSESSEE. AC CORDINGLY, CONSIDERING THE RECORD, THE PRESENT ADJOURNMENT REQ UEST MOVED WAS REJECTED. ON A PERUSAL OF THE RECORD, WE HAVE SEEN THAT THE ASSESSEE HAS NOT ARGUED ITS CASE. THE OPP ORTUNITIES AS POINTED OUT BY THE LD. SR.DR HAVE BEEN USED ONLY TO SEEK TIME. IN THE INTERESTS OF SUBSTANTIAL JUSTICE, ONLY TO GRANT AN ITA 83 /CHD/2019 A.Y. 2009-10 PAGE 3 OF 4 EFFECTIVE OPPORTUNITY OF BEING HEARD, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A). WHILE SO DIRECTING IT IS MADE CLEAR THAT THE ASSESSEE SHALL UTILIZE THE O PPORTUNITY SO PROVIDED IN GOOD FAITH BY MAKING FULL AND PROPER COMPLIANCES BEFORE THE SAID AUTHORITY AND SHALL NOT ABUSE THE TRUST REPOSED AS IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED, IT IS MADE CLEAR THAT THE LD. CIT(A) SHALL BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERI AL AVAILABLE ON RECORD. THE ASSESSEE IS REQUIRED UNDER LAW TO EXPLAIN THE SOURCES OF SHARE CAPITAL, SHARE PREMIUM AND RECEIPT OF SHARE APPLICATION MONEY QUESTIONED BY THE DEPARTMENT AND THE ASSESSEE TILL DATE HAS FAILED TO ADDRESS THESE. WE ARE OF THE VIEW THAT THE TAXPAYER CANNOT BE ALLOWED TO TAKE TH E SYSTEM FOR A RIDE. THE OPPORTUNITY OF BEING HEARD BEING SO GRANTED, IT IS HOPED IS USED FAIRLY BY THE ASSESSEE. SAID OB SERVATIONS HAVE BEEN MADE IN THE LIGHT OF ABUSE OF THE TRUST N OTED BY THE CIT(A) IN PARA 12 OF HIS ORDER WHICH IS REPRODU CED HEREUNDER FOR READY REFERENCE : 12 . ACCORDINGLY, THE APPELLANT PREFERRED THE INSTANT AP PEAL ON 03/05/2017. HOWEVER, DESPITE REPEATED OPPORTUNITIES, THE APPELL ANT DID NOT COME FORWARD TO EXPLAIN AS TO HOW THE REASSESSMENT PROCEEDINGS WAS VITIATED ON ACCOUNT OF NOTICE UNDER SECTION 148 HAVING BEEN SERVED BEYOND THE STA TUTORY TIME LIMIT AS ALSO ON THE GROUND THAT THE AO DID NOT HAVE SUFFICIENT MATE RIAL WITH HIM TO FORM A REASONABLE BELIEF OF ESCAPEMENT OF INCOME BEFORE AS SUMING THE JURISDICTION TO REASSESS. IN COLUMN 12 & 12.1 OF THE FORM NO. 35, I T WAS ENTERED THAT DOCUMENTARY EVIDENCE IN SUPPORT OF THE APPEAL AND THE GRIEVANCES SHALL BE PRODUCED UNDER RULE 46A DURING THE APPELLATE PROCEE DINGS. THE APPELLANT, AS STATED EARLIER, NEVER CAME FORWARD TO PRODUCE SUCH ADDITIONAL EVIDENCE AND ALWAYS KEPT SEEKING ADJOURNMENTS AND PROCRASTINATI NG THE DISPOSAL OF THE APPEAL FILED BY IT. FROM THE AFORESAID CONDUCT OF THE APPE LLANT COMPANY, IT CANNOT BUT BE ITA 83 /CHD/2019 A.Y. 2009-10 PAGE 4 OF 4 CONCLUDED THAT THE APPELLANT DOES NOT HAVE ANY EXPL ANATION REGARDING THE SOURCES OF INTRODUCTION OF SHARE CAPITAL, SHARE PREMIUM AND SHARE APPLICATION MONEY IN ITS BOOKS. THE APPELLANT ALSO DOES NOT APPEAR TO HAVE A NY CAUSE OF GRIEVANCE IN GETTING ITSELF REASSESSED FOR ESCAPEMENT OF INCOME IN AS MUCH AS IT DID NOT COME UP WITH ANY EXPLANATION IN THIS REGARD DURING THE APPE LLATE PROCEEDINGS. 4. ACCORDINGLY, TAKING STRONG EXCEPTION TO THE PERC EIVED ABUSE OF THE RIGHTY TO HEARD VESTED IN THE ASSESSEE WITH THESE OBSERVATIONS, THE APPEAL IS REMANDED BACK TO THE FILE OF THE LD. CIT(A) WITH THE ABOVE DIRECTIONS. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH SEPTEMBER,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER POONAM '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR