Swastik Steel Hospet Pvt. Ltd., Hospet V. DCIT, Bangalore

ITA 885/BANG/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4679 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 04-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: H N KHINCHA
• Keywords: Opportunity of being heard; Non compliance
• Section: 40A(3); 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO S . 885, 887, 889 & 891 /BANG/201 5 ASSESSMENT YEAR S : 20 08 - 09 TO 2011 - 12 M/S. SWASTIK STEEL HOSPET PVT. LTD., NO. 1223, BIGS WARD, BHAGATH SINGH NAGAR, T.B. DAM ROAD, HOSPET 583 201. PAN: AABCH9470M VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2 (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.N. KHINCHA, CA RESPONDENT BY : MS. NEERA MALHOTRA, CIT (DR) DATE OF HEARING : 06 .0 6 .2018 DATE OF PRONOUNCEMENT : 08 .06.2018 O R D E R PER BENCH ALL THESE FOUR APPEALS ARE FILED BY THE ASSESSEE AN D THE SAME ARE DIRECTED AGAINST A COMBINED ORDER OF LD. CIT(A)-11, BANGALOR E DATED 27.02.2015 FOR ASSESSMENT YEARS 2008-09 TO 2011-12. ALL THESE APP EALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORD ER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2008-09 IN ITA NO. 885/BANG/2015 ARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE IMPUGNED ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE SA ME. 2. THE IMPUGNED ORDER IS BAD IN LAW AND IS VOID AB- INITIO FOR: A) LACK OF JURISDICTION OF B) LACK OF PROPER NOTICE AND NON COMPLIANCE OF LEGA L REQUIREMENTS C) FOR NOT FOLLOWING THE PRINCIPLES OF LAW APPLICAB LE; AND ITA NOS. 885, 887, 889 & 891/BANG/2015 PAGE 2 OF 5 D) HENCE IS REQUIRED TO BE QUASHED. 3. IN ANY CASE, THE IMPUGNED ORDER AS PASSED IS BAR RED BY LIMITATION AND HENCE IS LIABLE TO BE QUASHED. 4. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT IMPUGNED ORDER BE QUASHED AND OTHER NECESSARY RELIEF BE ALLOWED TO THE APPELLANT. 3. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2009-10 IN ITA NO. 887/BANG/2015 ARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE IMPUGNED ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE SA ME. 2. THE IMPUGNED ORDER IS BAD IN LAW AND IS VOID AB- INITIO FOR: A) LACK OF JURISDICTION B) LACK OF PROPER NOTICE C) FOR NOT FOLLOWING THE PRINCIPLES OF LAW APPLICAB LE AND HENCE IS REQUIRED TO BE QUASHED. 3. IN ANY CASE, THE IMPUGNED ORDER AS PASSED IS BAR RED BY LIMITATION AND HENCE IS LIABLETO BE QUASHED. 4.1 IN ANY CASE AND WITHOUT PREJUDICE THE ASSESSING OFFICER HAD ERRED IN HOLDING THAT: A) THE FIGURES AS STATED ARE FIGURE OF PURCHASE; B) THAT IN ANY CASE PURCHASES ARE NOT PROVED; C) THAT VENDORS ARE NOT IDENTIFIABLE; D) THAT THERE IS VIOLATION OF STATE GOVERNMENT RULE S; E) THE EXPLANATION TO SECTION 37(1) IS APPLICABLE T O SUCH PURCHASES G) THERE IS A VIOLATION OF SECTION 40A(3) OF THE I. T. ACT; AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE SAME. 4.2 THE ABOVE CONCLUSIONS DRAWN BY THE AUTHORITIES BELOW, BESIDES BEING CONTRARY TO EACH OTHER, ARE NOT BASED ON FACT S OR EVIDENCE OR ANY LAW APPLICABLE. 4.3 ALL THE PURCHASES MADE BY APPELLANT ARE GENUINE , DULY VOUCHED AND SUPPORTED BY EVIDENCE AND VOUCHERS, VENDORS ARE IDENTIFIABLE AND THERE IS NOT VIOLATION OF ANY LAW EITHER OF STATE G OVERNMENT OR CENTRAL. 4.4 THE PROVISIONS OF EXPLANATION TO SECTION 37(1) OF THE I.T. ACT, 1961 OR 40A (3) OF THE I.T. ACT, ARE ALSO NOT APPLICABLE TO APPELLANT. 4.5 THE ADDITION MADE/CONFIRMED IS WHOLLY ERRONEOUS AND IS BEREFT ANY EVIDENCE AND IS NOT SUPPORTED BY ANY PRINCIPLES OF LAW OR ACCOUNTING PRINCIPLES AND THEREFORE THE ADDITION IS REQUIRED TO BE DELETED IN ENTIRETY. 5. THE APPELLANT ALSO DENIES LIABILITY TO PAY INTER EST. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED IN ENTIRETY. 6. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT IMPUGNED ORDER TO BE QUASHED OR AT ITA NOS. 885, 887, 889 & 891/BANG/2015 PAGE 3 OF 5 LEAST ADDITION TO INCOME BE DELETED AND INTEREST LE VIED BE ALSO DELETED. 4. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2010-11 IN ITA NO. 889/BANG/2015 ARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE IMPUGNED ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE SA ME. 2. THE IMPUGNED ORDER IS BAD IN LAW AND IS VOID AB- INITIO FOR LACK OF JURISDICTION; LACK OF PROPER NOTICE; FOR NOT FOLLOW ING THE PRINCIPLES OF LAW APPLICABLE; AND HENCE IS REQUIRED TO BE QUASHED . 3. IN ANY CASE, THE IMPUGNED ORDER AS PASSED IS BAR RED BY LIMITATION AND HENCE IS LIABLE TO BE QUASHED. 4. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT IMPUGNED ORDER BE QUASHED AND OTHER NECESSARY RELIEF BE ALLOWED TO THE APPELLANT. 5. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMEN T YEAR 2011-12 IN ITA NO. 891/BANG/2015 ARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE IMPUGNED ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE SA ME. 2. THE IMPUGNED ORDER IS BAD IN LAW AND IS VOID AB- INITIO FOR LACK OF JURISDICTION; LACK OF PROPER NOTICE; FOR NOT FOLLOW ING THE PRINCIPLES OF LAW APPLICABLE; AND HENCE IS REQUIRED TO BE QUASHED . 3. IN ANY CASE, THE IMPUGNED ORDER AS PASSED IS BAR RED BY LIMITATION AND HENCE IS LIABLE TO BE QUASHED. 4. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT IMPUGNED ORDER BE QUASHED AND OTHER NECESSARY RELIEF BE ALLOWED TO THE APPELLANT. 6. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT GROUND NO. 1 IN ALL THE YEARS IS GENERAL AND GROUND NO. 3 IN ALL TH E YEARS IS NOT PRESSED. 7. REGARDING GROUND NO. 2, HE SUBMITTED THAT ON THE SE TECHNICAL ISSUES, THE ORDER OF CIT(A) IS VERY CRYPTIC AND IN THIS REGARD, OUR A TTENTION WAS DRAWN TO PARA 7 OF THE ORDER OF CIT(A). HE SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAK ING AND REASONED ORDER. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). ITA NOS. 885, 887, 889 & 891/BANG/2015 PAGE 4 OF 5 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. GROUN D NO. 3 IN EACH YEAR IS REJECTED AS NOT PRESSED. REGARDING GROUND NO. 2 IN EACH YEAR, WE REPRODUCE PARA 7 OF THE COMBINED ORDER OF CIT(A). THE SAME R EADS AS UNDER. 7. JURISDICTION OF ASSESSING OFFICER(COVERED IN GRO UND NO.11: THE JURISDICTION WITH THE ASSESSING OFFICER WAS VES TED VIDE ORDER OF COMMISSIONER OF INCOME TAX(GULBARGA) IN F.NO.90/CIT -GLB/2010-11 DATED 18.03.2011 WHICH IS NEITHER DISPUTED NOR CONT ESTED. NOTICE U/S 153C WAS ISSUED FOR A.YS 2008-09 TO 2010-11 ON THE BASIS OF MATERIAL SEIZED AND BELONGING TO THE APPELLANT FROM THE SEAR CH ACTION IN THE CASE OF SRI K V NAGARAJ. THE OBJECTION RAISED IN TH IS REGARD WERE SETTLED BY THE ASSESSING OFFICER VIDE LETTER DATED 24.08.2012. AS SUCH, THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFF ICER IS IN ORDER AND IS UPHELD. SUFFICIENT AND REPEATED OPPORTUNITIES WE RE PROVIDED BEFORE PASSING THE ORDER. MORE OVER, CLEARLY ON ACCOUNT OF LIMITATION, THE ASSESSING OFFICER WAS UNABLE TO ALLOW FURTHER TIME TO APPELLANT. FURTHER TIME AND OPPORTUNITIES HAVE BEEN ALLOWED DU RING THE COURSE OF APPEAL ALSO. THE REQUISITE NOTICES HAVE BEEN ISS UED AND THE LEGAL PROCEDURES HAVE BEEN FOLLOWED. IT IS ON RECORD THAT THE APPELLANT HAS ACCEPTED THE JURISDICTION OF ASSESSING OFFICER, WHI CH IS EVIDENT FROM LETTER DATED 13.03.2013 OF SRI GOVINDRAJ REQUESTING FOR MORE TIME TO SUBMIT DETAILS IN VIEW OF SRI K V NAGARAJ, BEING UN AVAILABLE. THE ACTION OF THE ASSESSING OFFICER IS IN ORDER AND IS UPHELD. 9. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT (A), WE FIND THAT THE ORDER OF CIT (A) ON THIS ISSUE IS VERY CRYPTIC AND HENCE, WE FEEL IT PROPER TO RESTORE BACK THE MATTER TO THE FILE OF CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUAT E OPPORTUNITY OF BEING HEARD TO BOTH SIDES. WE ORDER ACCORDINGLY. GROUND NO. 2 IN EACH YEAR IS ALLOWED FOR STATISTICAL PURPOSES. 10. REGARDING THE REMAINING GROUNDS OF THESE APPEAL S, WE ARE OF THE CONSIDERED OPINION THAT NO ADJUDICATION IS CALLED FOR AT THE P RESENT STAGE BECAUSE THE ISSUE ON MERIT HAS TO BE DECIDED AFTER THE DECISION ON TH E ISSUE ON TECHNICAL ASPECT WHICH SHOULD BE DECIDED FIRST BY WAY OF A SPEAKING AND REASONED ORDER. SINCE THE ISSUE ON TECHNICAL ASPECT IS RESTORED BACK TO T HE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER, W E RESTORE BACK THE ISSUE ON MERIT ALSO TO THE FILE OF CIT(A) FOR FRESH DECIS ION BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. ITA NOS. 885, 887, 889 & 891/BANG/2015 PAGE 5 OF 5 11. IN THE RESULT, ALL THE FOUR APPEALS FILED BY TH E ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 08 TH JUNE, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.