M/s Kudos Agrohols Ltd., Chandigarh V. ACIT, CC-II, Chandigarh

ITA 865/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7204 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 250; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # . %.. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 865/CHD/2018 / ASSESSMENT YEAR : 2009-10 M/S KUDOS AGROHOLS LTD., # 1620, SECTOR 18D, CHANDIGARH. VS THE ACIT, CENTRAL CIRCLE-II, CHANDIGARH. ./ PAN NO: AACCK8042M / APPELLANT / RESPONDENT / REVENUE BY : SHRI TEJ MOHAN SINGH !' / ASSESSEE BY : SHRI ASHISH GUPTA, CIT(DR) # $ '% / DATE OF HEARING : 19.03.2019 &'() '% / DATE OF PRONOUNCEMENT : 16.04.2019 ')/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 23/03/2018 OF CIT(A), GU RGAON PERTAINING TO 200910 ASSESSMENT YEAR ON MERIT AS WELL AS ON THE GROUNDS OF LACK OF OPPORTUNITY FOR WHICH SPECIFIC GROUND NO. 1 HAS BEEN RAIS ED IN THE PRESENT APPEAL. THE SAID GROUND READS AS UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW IN DISMISSING THE APPEAL EX-PARTE WITHOUT AFFORDING AN OPPORTUNITY OF HEARING WHICH IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AND AS SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2. THE LD. AR INVITING ATTENTION TO THE IMPUGNED ORDER SU BMITTED THAT THE ORDER HAS BEEN PASSED WITHOUT HEARING THE AS SESSEE. IT WAS HIS SUBMISSION THAT HE IS INSTRUCTED TO SAY THAT NOTICES FOR THE SPECIFIC DATE OF HEARING WERE NEVER RECEIVED BY THE ASSESSEE. IT WAS ALSO HIS SUBMISSION THAT IN THE ORDER, THE NAME OF THE ASSESSEE IS MENTIONED AS M/S KUDOS CHEMIE LTD., H.NO. 1620, SECTOR 18D, CHANDIGARH WHICH IS INCORRECTLY MENTIONED AND INFACT IT SHOULD BE M/S KUDOS AGROHOLS LTD., # 1620, SECTOR 18D, CHANDIGARH. IT WAS HIS SUBMISSION TH AT IN ORDER TO CORRECT THE MISTAKE, THE ASSESSEE HAS MOVED AN APPLICAT ION BEFORE THE SAID AUTHORITY FOR RECTIFYING THE TYPOGRAPHICAL MISTAKE IN R ESPONSE TO THE ITA 865/CHD/2018 A.Y. 2009-10 PAGE 2 OF 3 DEFECT POINTED OUT BY THE REGISTRY, HOWEVER, THE CIT(A)S ORDER IS AWAITED. IN THE MEANTIME, EVEN OTHERWISE IT WAS HIS SUBMISS ION THAT THE ORDER HAS BEEN PASSED WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND SINCE IN SUPPORT OF THE GROUND ON MERIT S, FRESH EVIDENCES WOULD NEED TO BE FILED BY THE ASSESSEE, IT WAS H IS PRAYER THAT THE ISSUE MAY BE REMANDED TO THE ASSESSING OFFICER AS EV EN THE ASSESSMENT ORDER IS AN EX-PARTE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. 3. CONSIDERING THE PRAYER, THE LD. CIT-DR SUBMITTED THAT THE SHORT ISSUE INVOLVED IN THE PRESENT APPEAL IS ONLY THE ADDITION OF RS. 36,748/- MADE BY THE ASSESSING OFFICER. ACCORDINGLY, THE ASSESSEE COULD VERY WELL ARGUE THE ISSUE BEFORE THE ITAT HOWEVER, CONSIDERING TH AT THE FRESH EVIDENCE IS REQUIRED TO BE FILED, HE GAVE UP THE OBJECTION . IT WAS ALSO NOTICED THAT EVEN OTHERWISE THE IMPUGNED ORDER IS NOT IN TERMS OF THE STATUTORY MANDATE. ACCORDINGLY, CONSIDERING THE RECORD IT WAS SUBMITTED BY HIM THAT HE WOULD HAVE NO OBJECTION IF THE ISSUE IS RES TORED TO THE ASSESSING OFFICER IN ORDER TO CONSIDER THE NECESSARY EVID ENCES ETC. ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR THAT THE OPPORTUNITY SHALL NOT BE ABUSED. 4. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE FIND THAT IN THE FACTS OF THE PRESENT CASE , THE DISMISSAL OF ASSESSEES APPEAL BY THIS CIT (A) RELYING UPON THE DECIS ION OF THE APEX COURT IN THE CASE OF B.N. BHATTACHARGEE 118 ITR 461 (SC) ON THE GROUNDS OF NON-REPRESENTATION IS NOT IN ACCORDANCE WITH THE STAT UTORY MANDATE. SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT,1961 MANDATES THAT; THE COMMISSIONER(APPEALS) WHILE EXERCISING HIS APPELLATE POWERS IS REQUIRED TO PASS AN ORDER WHICH SHALL BE IN WRITING AN D SHALL STATE THE POINTS FOR DETERMINATION OF THE DECISION THEREON IT ALSO MANDATES THAT THE LD. CIT(A) SHALL GIVE HIS CONCLUSION BACKED BY REASONS A RRIVING AT THE CONCLUSION. IN THE ORDER AVAILABLE ON RECORD, IT IS SEEN THAT THE SA ID EXERCISE IS FOUND TO BE MISSING. IN VIEW THEREOF, IN ORDER TO SET RIGHT THE STATUTORY DEFICIT, THE IMPUGNED ORDER IS SET ASIDE. ACCORDIN GLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR AND IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECT ION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASS ESSEE A ITA 865/CHD/2018 A.Y. 2009-10 PAGE 3 OF 3 REASONABLE OPPORTUNITY OF BEING HEARD. WHILE SO DIRECTING IT IS MADE CLEAR THAT THE IN THE EVENTUALITY THE TRUST REPOSED IN THE AS SESSEE IS ABUSED, THE ASSESSING OFFICER WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IN ITS OWN INTERE ST IS ADVISED TO PARTICIPATE FULLY AND FAIRLY IN THE PROCEEDINGS BEFORE TH E ASSESSING OFFICER. SAID ORDER WAS PRONOUNCED AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.04.2019. SD/- SD/- ( . % . . . & ) ( ! ) (DR. B.R.R. KUMAR) (DIV A SINGH) '( # / ACCOUNTANT MEMBER ' # / JUDICIAL MEMBER + , '* '+, -,' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. # .' / CIT 4. # .' ( )/ THE CIT(A) 5. ,/0 ' 1 , % 1 , 23405 / DR, ITAT, CHANDIGARH 6. 04 6$ / GUARD FILE '* # / BY ORDER, 7 / ASSISTANT REGISTRAR