M/s. Creative Home Fashion Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 847/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7445 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARVINDER KAUR
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T. S. KAPOOR , ACCOUNTANT MEMBER I.T.A .NO. - 847 /DEL/20 1 3 (ASSESSMENT YEAR - 200 9 - 10 ) M/S CREATIVE HOME FASHION PVT. LTD. A - 201, VARDHMAN APARTMENTS MAYUR VIHAR PHASE - 1, NEW DELHI. (APPELLANT) VS ITO WARD - 3(3 ), NEW DELHI. (RESPONDENT) APPELLANT BY SH. K. SAMPATH , ADV. RESPONDENT BY SMT. PARVINDER KAUR , SR. DR ORDER PER DIVA SINGH, JM TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 29.11.2012 OF CIT (APPEALS) - VI, NEW DELHI, PERTAINING TO ASSESSMENT YEAR 2009 - 10. 2. AT THE TIME OF HEARING, LD. AR QUA THE GROUNDS RAISED CONFINED HIS PRAYERS TO REQUESTING FOR RESTORING THE ISSUE BACK TO THE FILE O F THE AO , IN VIEW OF FACT THAT RELEVANT EVIDENCES HAVE NOT BEEN PLA CED ON RECORD, O N ACCOUNT OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. 3 . INVITING ATTENTION TO THE IMPUGNED ORDER , IT WAS HIS SUBMISSION THAT FOR WANT OF EVIDENCES THE ADDITIONS MADE BY THE AO WERE CONFIRMED BY THE LD. CIT(A) AS WOULD BE EVIDENT FROM PARA 4 OF HIS ORDER. IT WAS A LSO HIS SUBMISSION THAT THE RELEVANT EVIDENCES ARE LYING SEALED WITH THE B ANK AND THE ASSESSEE IS NOT IN A POSITION TO CALL FOR THE SAME AND THE AO WAS REQUESTED TO ENFORCE THE BANKERS TO MAKE AVAILABLE THE RELEVANT EVIDENCE AS WOULD BE EVIDENT FROM THE 2 SECOND BULLET OF THE STATEMENT OF FACT S FILED BEFOR E THE CIT(A) WHEREIN REFERENCE IS MADE TO A LETTER DATED 8.12.2011 FILED BEFORE THE AO , WHICH IS SUPPORTED BY PAGE 4 OF THE ASSESSMENT ORDER WHICH WOULD SHOW THAT A REFERENCE HA S BE EN MADE TO A LETTER DATED 22.12.2011 B Y THE AO HIMSELF WHEREIN THE AO RECORDS THAT THE ASSESSEE PLEAD S ITS INABILITY TO PRODU CE THE NECESSARY DOCUMENTARY EVIDENCES IN SUPPORT OF I T S CLAIM. IT WAS SUBMITTED THAT REFERENCE TO THE SAME LETTER HA S AGAIN BEEN MADE BY THE AO AT PAGE 5 OF HIS ORDER. IN VIEW OF THE SE FACTS , IT WAS PRAYER THAT THE ISSUE MAY BE RESTORED TO THE AO DIRECTING HIM TO CALL FOR TH E NECESSARY EVIDENCES FROM THE BANK S WHO HAVE SEALED THE ASSESSEE S PREMISES AND T HEREAFTER DECIDE THE ISSUE S . 4 . THE LD. SR. DR HA D NO OBJECTION TO THE SAID REQUEST ON BEHALF OF THE ASSESSEE A S IT WAS ACCEPTED THAT THE EVIDENCES WERE NEVER MADE AVAILABLE . 5 . WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE WHO IS IN THE BUSINESS OF MANUFACTURING TRADING AND EXPORT OF HOME FURNISHING GOODS, READYMADE GARMENTS ETC. RETURNED A LOSS INCOME WH ICH FOR WANT OF NECESSARY EVIDENCE WAS CONVERTED INTO A POSITIVE INCOME. THE RECORD SHOWS THAT THE ASSESSEE RETURNED A LOSS OF RS.6,35,17,838/ - HOWEVER THE ASSESSMENT WAS CONCLUDED ON A POSITIVE FIGURE OF RS.3,48,13,2 90/ - AS A RESULT OF ADDITIONS OF RS.29,45,327/ - U/S 14A, RS.73,79,100/ - ON ACCOUNT OF DISALLOWANCE OF EXPENSES AND RS.8,80,06,697/ - ON ACCOUNT OF UNEXPLAINED LIABILITY U/S 68. WE HAVE TAKEN INTO CONSIDERATION THE STATEMENT OF FACT S FILED ALONGWITH THE ME MO OF APPEALS BEFORE THE CIT(A) AND SPECIFIC PAGE S 4 & 5 OF THE ASSESSMEN T ORDER READ ALONG WITH PARA 4 OF THE IMPUGNED ORDER WHICH DEMONSTRATE THAT THE ASSESSEE HAS CLAIMED THAT REQUISITE EVIDENCES WERE NOT IN ITS POSSESSION. F OR READY REFERENCE WE REPROD UCED PARA 4 FROM THE IMPUGNED ORDER : 4. DURING THE COURSE OF APPELLANT PROCEEDINGS, THE APPELLANT WAS REQUESTED TO PRESENT HIS CASE WITH SUPPORTING DOCUMENTS. HOWEVER, THE LD. AR OF THE APPELLANT COMPANY SUBMITTED VIDE HIS LETTER DATED 28/29.11.2011 THAT THE 3 APPELLANT IS UNABLE TO PROVIDE ANY DOCUMENTS/EVIDENCES, CONFIRMATIONS ETC. AS THE PREMISES OF THE APPELLANT COMPANY CONTINUED TO BE SEALED BY THE BANKERS FOR THEIR RECOVERY. AFTER CONSIDERING THE SUBMISSIONS OF THE APPELLANT COMPANY AND IN THE ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE OBJECTIONS RAISED IN THE GROUNDS OF APPEAL, I HAVE NO OTHER OPTION BUT TO CONFIRM THE ADDITIONS MADE BY THE AO IN THE IMPUGNED ORDER. HENCE, THE APPEAL IS DISMISSED AND THE ORDER OF THE AO IS CONFIRMED. 5.1 . ON A CONSIDERATION OF THE ENTIRE FACTUAL MATRIX, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF THE AO . T HE ASSESSEE IS DIRECTED TO PLACE ON RECORD THE NECESSARY DETAILS IN REGARD TO THE SPECIFIC BANKS AND THE SPECIFIC ORDERS BY WHICH THE PREMISES A RE STATED TO BE SEALED , BY THE B ANK IN ORDER TO ALLOW THE AO TO DIRECT PRODUCTION OF THE NECESSARY EVIDENCE S FOR DECIDING THE ISSUE. THE OPPORTUNITY SO GRANTED TO THE AS SESSEE IT IS ADVISED SHOULD NOT BE WASTED AND BE DULY COMPLIED WITH ITS OWN INTERESTS . THE AO ACCORDINGLY TAKING INTO CONSIDERATION THE EVIDENCES IN SUPPORT OF ITS ASSESSEE S CLAIM IS DIRECTED TO PASS A SPEAKIN G ORDER IN ACCORDANCE WITH LAW , AFTER GIVING T HE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 . THE ORDER WAS PRONOUNCED IN THE PRESENCE OF BOTH THE PARTIES IN THE OPEN COURT ON 31/12/2014 . SD/ - SD/ - ( T. S. KAPOOR ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 / 12 /2014 *A . K .VERMA * C OPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI