M/s. S.N.Agarwal Pvt.Pvt., Kanpur V. The ACIT-6, Kanpur

ITA 90/LKW/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87769 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-02-2015
• Assessment Year: 1994-1995
• Appeal Filed On: 01-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.90/LKW/2012 ASSESSMENT YEAR:1994-95 M/S S.N. AGARWAL PVT. LTD. 339, VISHNUPURI KANPUR V. ACIT-6, KANPUR TAN/PAN:AAJCS3220N (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. PUNIT KUMAR, D.R. DATE OF HEARING: 06 02 2015 DATE OF PRONOUNCEMENT: 20 02 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS, WHICH ARE AS UNDER:- 01. BECAUSE THE CIT HAS ERRED IN LAW AND ON FACTS AND IN NOT ADJUDICATING THE GROUND NO. 7 OF THE GROUND OF APPEAL WHICH READS AS UNDER: 'THE ENTIRE ASSESSMENT PROCEEDINGS, IMPUGNED NOTICES AND IMPUGNED ASSESSMENT ORDER ARE BARRED BY LIMITATION AND TIME, THEREFORE, ILLEGAL, BAD IN LAW AND VOID-AN-INITIO, THEREFORE, LIABLE TO BE CANCELLED AND/OR ANNULLED. 02. BECAUSE THE CIT(A) HAS NOT APPRECIATED THE FACTS THAT THE ASSESSMENTS MADE ON 26.10.2006 GIVING EFFECT OF ITAT ORDER DATED 24TH NOV., 2004 IS BARRED BY LIMITATION, LIABLE TO BE CANCELLED. :- 2 -: 03. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN SUSTAINING AN ADDITION OF RS.3,85,000/-ON ACCOUNT OF UNSECURED LOANS. 04. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN APPLYING AND UPHOLDING NET PROFIT RATE OF 8% AS AGAINST 4.68% DECLARE BY THE APPELLANT. 05. BECAUSE THE ASSESSMENT ORDER DATED 26.10.2006 UNDER REFERENCE IS ILLEGAL, BAD IN LAW, CONTRARY TO FACTS AND PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE HAD CHALLENGED THE ASSESSMENT ORDER BEING BARRED BY LIMITATION BEFORE THE LD. CIT(A) BY RAISING GROUND NO.7, BUT THE LD. CIT(A) DID NOT ADJUDICATE THE SAME AND DECIDED THE APPEAL ON MERIT. THEREFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE LEGAL GROUND BY PASSING A SPEAKING ORDER. 3. THE LD. D.R. DID NOT DISPUTE THE FACTUAL ASPECT. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), WE FIND THAT THE ASSESSEE HAD RAISED GROUND NO.7 BEFORE THE LD. CIT(A) ASSAILING THE VALIDITY OF THE ASSESSMENT BEING BARRED BY LIMITATION, BUT THE LD. CIT(A) DID NOT ADJUDICATE THIS GROUND IN HIS ENTIRE ORDER. THEREFORE, WE ARE OF THE VIEW THAT THERE SHOULD BE A FINDING OF THE LD. CIT(A) WITH REGARD TO THE VALIDITY OF THE ASSESSMENT. WE ACCORDINGLY RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE LEGAL GROUND AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. SO FAR AS THE OTHER GROUNDS ON MERIT ARE CONCERNED, WE DO NOT EXPRESS OUR VIEW AT THIS STAGE. LET THE LD. CIT(A) DISPOSE OF THE LEGAL GROUND AND THEREAFTER WE WILL CONSIDER OTHER ISSUES ON MERIT. ACCORDINGLY, :- 3 -: THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF GROUND NO.7 RAISED BEFORE HIM. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH FEBRUARY, 2015 JJ:0602 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR