M/s. Dhandapani Cements pvt Ltd., Trichy V. DCIT, Trichy

ITA 946/CHNY/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0930 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: BALA GANESH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NOS.945 & 946/MDS/2011 ( ASSESSMENT YEARS:2006-07 & 2007-08) M/S. DHANDAPANI CEMENTS PVT.LTD., 69, GANAPATHY NAGAR, THIRUVANAIKOIL, TRICHY-5. PAN:AAACD3941N VS. DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-I, TRICHY. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. BALA GANESH, CA RESPONDENT BY : MR. ANIRUDH RAI, CIT DR DATE OF HEARING : 7 TH JANUARY, 2013 DATE OF PRONOUNCEMENT : 7 TH JANUARY, 2013 O R D E R PER VIKAS AWASTHY, JM: THE PRESENT SET OF TWO APPEALS RELEVANT TO THE ASSESSMENT YEARS 2006-07 AND 2007-08 HAVE BEEN FIL ED BY THE ASSESSEE IMPUGNING THE ORDERS OF THE CIT(A), TR ICHY BOTH DATED 8.3.2011. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMP ANIES ACT, 1956 AND IS ENGAGED IN MANUFACTURE AND SALE OF CEMENT AND STEEL. THE DEPARTMENT OF CENTRAL EXCISE HAD CO NDUCTED ITA NO.945 & 946/MDS/2011 2 A SEARCH IN THE PREMISES OF THE ASSESSEE AND HAD AL LEGED EVASION OF EXCISE DUTY. PURSUANT TO THE SEARCH COND UCTED BY THE DEPARTMENT OF CENTRAL EXCISE, INTIMATION WAS SE NT BY THE COMMISSIONER OF CENTRAL EXCISE TO THE INCOME TAX DEPARTMENT. IN THE SEARCH, THE DEPARTMENT OF CENTR AL EXCISE ALLEGED UNACCOUNTED PRODUCTION AND SALE OF 4496.50 METRIC TONNES OF CEMENT FOR THE ASSESSMENT YEAR 2006-07 A ND 3777.50 METRIC TONNES OF CEMENT FOR THE ASSESSMENT YEAR 2007-08. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE A SSESSEE. THE ASSESSING OFFICER VIDE ASSESSMENT ORDER RELEVA NT TO THE ASSESSMENT YEAR 2006-07 MADE ADDITION TO THE TUNE O F ` 1,12,82,040/- FOR THE ASSESSMENT YEAR 2006-07 AND ` 1,04,77,555/- FOR THE ASSESSMENT YEAR 2007-08. THE CIT(A) UPHELD THE FINDINGS OF THE ASSESSING OFFICER AND DI SMISSED THE APPEALS OF THE ASSESSEE FOR BOTH THE AFOREMENTI ONED ASSESSMENT YEARS VIDE ORDER OF EVEN DATE I.E. 8.3.2 011. AGGRIEVED AGAINST THE ORDER OF THE CIT(A), THE ASS ESSEE HAS COME IN SECOND APPEAL BEFORE THE TRIBUNAL. ITA NO.945 & 946/MDS/2011 3 3. SHRI M.BALA GANESH APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT ONLY BASIS FOR ADDITION FOR BOTH THE ASSESSMENT YEARS IS THE INFORMATION RECEIVED FROM DEPARTMENT OF CENTRAL EXCISE, EXCEPT THAT THERE WAS NO OTHER BASIS FOR MAKING ADDITION BY THE ASSESSING OFFICER. THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE COMMISS IONER OF CUSTOMS AND CENTRAL EXCISE(APPEALS) AGAINST THE ORDER PASSED BY THE ADDITIONAL COMMISSIONER OF CENTRAL EX CISE. THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS) VIDE ORDER DATED 27.4.2010 ALLOWED THE APPEAL OF THE AS SESSEE AND SET ASIDE THE ORDER OF THE LOWER AUTHORITY. THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS) DIRECTED THE LOWER AUTHORITIES TO GRANT FAIR AND RE ASONABLE OPPORTUNITY TO THE ASSESSEE. THE A.R. PLACED ON REC ORD A COPY OF THE ORDER-IN-APPEAL NO.67/2010 DATED 27.4.2 010 PASSED BY THE COMMISSIONER OF CUSTOMS & CENTRAL EXC ISE (APPEALS), TRICHY. 4. ON THE OTHER HAND, SHRI ANIRUDH RAI APPEARING ON BEHALF OF THE REVENUE STRONGLY SUPPORTED THE ORDER OF THE ITA NO.945 & 946/MDS/2011 4 CIT(A) AND PRAYED FOR DISMISSAL OF THE APPEAL OF TH E ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES. WE HAVE PERUSED THE ORDERS PASSED BY THE LOWER AUTHORITIES AS WELL AS T HE ORDER PASSED BY THE COMMISSIONER OF CUSTOMS & CENTRAL EXC ISE (APPEALS) PLACED ON RECORD BY THE A.R. A PERUSAL O F THE SAID ORDER SHOWS THAT THE COMMISSIONER OF CUSTOMS & CENT RAL EXCISE (APPEALS), TRICHY HAS REMITTED THE CASE BACK TO THE LOWER AUTHORITY TO DECIDE THE MATTER AFRESH AFTER G RANTING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND FOR CROSS EXAMINATION OF THE VARIOUS PERSONS. THE OPERA TIVE PART OF THE SAID ORDER IS REPRODUCED HEREIN BELOW:- THE APPEAL IS ALLOWED AND THE ORDER OF THE LOWER AUTHORITY IS SET ASIDE. HOWEVER, THE LOWER AUTHORIT Y IS DIRECTED TO GRANT A FRESH, FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD IN PERSON BE GRANTED TO THE APPELLANTS AND FOR CROSS-EXAMINATION OF VARIOUS PERSONS, WHOSE DEPOSITION HAS BEEN RELIED IN THE SCN AND ALSO GIVE A FAIR OPPORTUNITY TO MAKE AN EFFECTIVE REPLY AND TO PRODUCE EVIDENCES TO THE ALL ITA NO.945 & 946/MDS/2011 5 ALLEGATIONS ESPECIALLY THOSE OF 52000 CEMENT BAGS WHICH WERE DAMAGED AND NOT FIT FOR PACKING WHEREVER NECESSARY, AS PER LAW. WHEN A QUERY WAS PUT TO THE A.R. AS TO WHY THIS ORD ER WAS NOT PLACED BEFORE THE CIT(A), THE A.R. SUBMITTED TH AT THE ORDER OF THE COMMISSIONER OF CUSTOMS & CENTRAL EXCI SE (APPEALS) WAS PLACED BEFORE THE CIT(A), HOWEVER HE DID NOT TAKE NOTE OF IT. THE A.R. FAIRLY STATED THAT THE DE PARTMENT OF CENTRAL EXCISE HAS PREFERRED AN APPEAL AGAINST THE ORDER DATED 27.4.2010 BEFORE CESTAT WHICH IS STILL PENDIN G FOR FINAL ADJUDICATION. IT IS AN ADMITTED FACT THAT TH E ASSESSING OFFICER HAD MADE ADDITIONS ONLY ON THE BASIS OF INF ORMATION RECEIVED FROM THE OFFICE OF THE COMMISSIONER OF CEN TRAL EXCISE, TRICHY. ONCE THE ORDER VIDE WHICH THE DEMAN D UNDER THE PROVISIONS OF CENTRAL EXCISE ACT WAS RAISED HAS BEEN SET ASIDE, THE CONSEQUENT PROCEEDINGS INITIATED UNDER T HE INCOME TAX ACT BECOMES INVALIDATE. WE ARE OF THE CONSIDERE D VIEW THAT IN THE INTEREST OF JUSTICE IT WOULD BE APPROPR IATE TO REMIT THE MATTER BACK TO THE FILE OF THE CIT(A), TRICHY . THE CIT(A) IS DIRECTED TO PASS AN ORDER AFTER AFFORDING FAIR OPPO RTUNITY OF ITA NO.945 & 946/MDS/2011 6 HEARING TO THE ASSESSEE AND AFTER TAKING INTO CONSI DERATION THE ORDER PASSED BY THE CESTAT AND THE ORDER PASSED IN COMPLIANCE OF THE DIRECTION OF THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS) BY THE LOWER AUTHORITY. IT SHALL BE INCUMBENT UPON THE ASSESSEE TO FURNISH THE ORDERS P ASSED BY THE AFORESAID AUTHORITIES WITHOUT DELAY TO THE CIT( A) TO ENABLE HIM TO ADJUDICATE THE ISSUE. 6. IN VIEW OF OUR ABOVE FINDINGS, WE SET ASIDE THE ORDER OF THE CIT(A) IN BOTH THE ASSESSMENT YEARS, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY, THE 7 TH DAY OF JANUARY, 2013 AT CHENNAI. SD/- SD/- ( N.S. SAINI ) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 7 TH JANUARY, 2013. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.