M/s Raja Mini Cements , Kalaburagi V. Assistant Commissioner of Income Tax Circle-1, Kalaburagi

ITA 948/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2622 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH C BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K GARODIA, ACCOUNTANT MEMBER ITA NO.948/BANG/2018 (ASST. YEAR 2013-14) M/S RAJA MINI CEMENTS, 8-13-14, NEHRU GUNJ, KALABURAGI. . APPELLANT PAN AACFR1771K. VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1, KALABURAGI. . RESPONDENT APPELLANT BY : SHRI S.V RAVISHANKAR, ADVOCATE RESPONDENT BY : DR. P.V PRADEEP KUMAR, ADDL. CI T DATE OF HEARING : 26-09-2018 DATE OF PRONOUNCEMENT : 05 -10-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) KALABURAGI, IS BAD AND UNSUSTAINABLE IN THE EYES OF LAW AS THE SAME IS PASSED WITHOUT PROPE R APPLICATION OF MIND AS ALSO BEING CONTRARY TO SPIRI T & PROVISIONS OF THE STATUTE. 2. THE CIT(A) GROSSLY ERRED IN DISMISSING THE APPEA L EX-PARTE, WITHOUT ASCERTAINING THE FACT THAT THE APPELLANT DID NOT GET NOTICES OF HEARING, IN TIME. ITA NO.948/B/18 2 3. THE CIT(A) GROSSLY ERRED IN NOT APPRECIATING THA T MOST OF THE PAYMENTS MADE DID NOT COME UNDER THE PURVIEW OF S. 194C OF THE ACT AND THAT MOST OF THE PAYMENTS WERE MADE FOR TRANSPORTATION WHEN THE TRANSPORTER DID NOT HAVE BANK ACCOUNT AND THAT IN M ANY OCCASIONS THE PAYMENT WAS MADE DURING BANK HOLIDAYS . 4. WITHOUT PREJUDICE TO THE ABOVE, THE CIT(A) OUGHT TO HAVE APPRECIATED THAT AS PER STATUTE AND CIRCULA R NO. 10/2013 DATED 16.12.2013 WHICH WAS AVAILABLE DURING THE ASSESSMENT PROCEEDINGS, THE DISALLOWANCE UNDER S.40(A)(IA), IF AT ALL, IS ONLY 30% AND NOT THE ENT IRE AMOUNT; AND HENCE BOTH THE ORDERS ARE ILLEGAL AND UNSUSTAINABLE. 5. WITHOUT PREJUDICE TO THE OTHER CONTENTIONS OF TH E APPELLANT, THE CIT(A) OUGHT TO HAVE APPRECIATED THA T THE AFORE-SAID PROVISION OF LAW WAS APPLICABLE ON T HE PAYMENTS OF MADE BY THE APPELLANT DURING THE COURSE OF ITS BUSINESS. 6. THE CIT(A) FURTHER ERRED IN CONFIRMING THE DISALLOWANCE OF ACCIDENT COMPENSATION PAID DURING T HE COURSE OF BUSINESS WHICH WAS MET IN THE BEST INTERE ST OF APPELLANT'S BUSINESS. 7. THE CIT(A) ALSO ERRED IN DISALLOWING 20% OF EXPENDITURE INCURRED TOWARDS SAND AND RUBBLE STONE WITHOUT ANY REASON OR JUSTIFICATION. THE APPELLANT SEEKS THE LEAVE OF THE COURT TO ALTER, AMEND, MODIFY, ANY OR ALL GROUNDS, BEFORE OR DURING THE COURSE OF HEARING. 2. DURING THE COURSE OF HEARING, THE LEARNED COU NSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE CIT( A) THAT CIT(A) HAS ITA NO.948/B/18 3 DISMISSED THE APPEAL EX-PARTE AGAINST THE ASSESSEE WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD AR FURTHER POINTED OUT THAT THE CIT (A) HAS NOT EVEN ADJUDICATED THE APPEAL ON MERIT. THEREFORE THIS OR DER MAY BE SET ASIDE AND MATTER MAY BE RESTORED TO HIS FILE TO ADJ UDICATE THE APPEAL AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DESPITE REQUEST OF THE ASSESSEE, THE CI T(A) HAS NOT AFFORDED OPPORTUNITY AND DISPOSED OFF THE APPEAL EX -PARTE THAT TOO NOT ON MERIT. 4. THE LEARNED DR ON THE OTHER HAND POINTED OUT THAT THE CIT(A) IS FIXED THIS APPEAL FOR HEARING ON NUMBER OF DAYS BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. MOREOVER, THERE WAS DELAY IN FILING OF THE APPEAL AND THE ASSESSEE DID NOT MOVE ANY APPLICATIO N FOR CONDONATION OF DELAY, THEREFORE, NO FRESH HEARING SHOULD BE GRA NTED TO THE ASSESSEE. 5. WE HAVE CAREFULLY EXAMINED THE ORDER OF THE CIT(A) AND WE FIND THAT THE CIT(A) HAD DISMISSED THE APPEAL EX-PA RTE WITHOUT ADJUDICATING THE ISSUE ON MERIT. WHEREAS IT IS REQ UIRED UNDER THE LAW TO ADJUDICATE THE APPEAL ON MERIT EVEN IF NONE APPE ARS ON BEHALF OF THE ASSESSEE. THE CIT(A) HAS NOT AFFORDED ANY OPPO RTUNITY TO THE ASSESSEE TO EXPLAIN THE DEAL IN FILING THE APPEAL. THEREFORE, WE ARE OF THE VIEW THAT ONE MORE CHANCE TO THE ASSESSEE TO PR OSECUTE ITS APPEAL ITA NO.948/B/18 4 MAY BE GIVEN. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF THERE IS A DELAY IN FILING THE APPEAL, THE ASSESSEE MAY BE ALLOWED TO FILE APPLICATION FOR CONDONATION OF DELAY EXPLAININ G THE DELAY IN FILING OF THE APPEAL. ACCORDINGLY, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCT, 2018 . SD/- SD/- (A.K GARODIA) (SUNI L KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE DATED : 05/10/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED 5.DR 6.GF BY ORDER ASST. REGISTRAR, I TAT, BANGALORE. ITA NO.948/B/18 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..