M/s Akhil Enterprises, Sirmour V. ITO, Nahan

ITA 970/CHANDI/2010

• Counselvise Citation: 97021514 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: ATUL MANDHAR
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CH ANDIGARH BEFORE SHRI H.L. KARWA, HONBLE VICE PRESIDENT AND SHRI MEHAR SINGH, HONBLE ACCOUNTANT MEMBER ITA NO. 970/CHANDI/2010 ASSESSMENT YEAR: 2006-07 AKHIL ENTERPRISES V I.T.O. NAHAN VILLAGE JOHRAN, TRILOK ROAD KALA AMB SIRMOUR PAN: AAKFA 5801 D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ATUL MANDHAR RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING: 28.9.2011 DATE OF PRONOUNCEMENT: 28.9.2011 ORDER PER H.L. KARWA, V.P THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE LD. CIT(A), SHIMLA DATED 26.4.2010 RELATING TO ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL:- 1 THAT THE ORDER OF LD. CIT(A), SHIMLA IS DEFECTIV E BOTH IN LAW AND FACTS OF THE CASE. 2 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN IG NORING AND IN NOT CONSIDERING REMAND REPORT SUBMITTED BY AO WHICH WAS DULY SOUGHT FOR BY THE LD. CIT(A) DURING APPELLATE PROCEEDINGS. 3 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UP HOLDING THE DISALLOWANCES OF DEDUCTION AMOUNTING TO RS. 12,509/ - U/S 80IC OF THE ACT AS THE ASSESSEE IS A MANUFACTURING UNIT. 4 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN GI VING ONLY PART RELIEF TO THE ASSESSEE AND IN UPHOLDING ADDITION OF RS. 10,20 ,768/- ON THE BASIS OF SALE OF SCRAP. 5 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UP HOLDING ADDITION OF RS. 13,38,513/- ON ACCOUNT OF ADDITION IN UNSECURED LO ANS. 6 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UP HOLDING ADDITION OF RS. 13,63,394/- ON ACCOUNT OF ADDITION TO THE CAPITAL OF THE PARTNERS. 7 THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UP HOLDING THE DISALLOWANCES AMOUNTING TO RS. 1,34,718/- ON ACCOUN T OF CONSUMABLE STORES, ELECTRICITY CHARGES, WAGES AND SALARIES. 2. AS REGARDS GROUNDS NO. 1 & 2 OF APPEAL, THE BRIE F FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED DECLARING NIL INCOME . SINCE THE ASSESSEE COULD NOT ITA NO. 970/CHANDI/2010 AKHIL ENTERPRISES V. ITO 2 2 FILE THE REQUIRED INFORMATION, THE ASSESSMENT WAS C OMPLETED BY THE AO U/S 143(3) OF THE ACT VIDE ORDER DATED 29.12.2008 ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE AO MADE THE FOLLOWING ADDITIONS / DISA LLOWANCES:- 1. DISALLOWANCE OF RS. 12,509/- U/S 80IC OF THE AC T 2. ADDITION OF RS. 37,85,968/- ON ACCOUNT OF SALE OF SCRAP 3. ADDITION OF RS. 13,38,513/- ON ACCOUNT OF ADDI TION IN UNSECURED LOANS 4. ADDITION OF RS. 13,63,394/- ON ACCOUNT OF ADDI TION TO CAPITAL OF PARTNERS 5. DISALLOWANCE OF RS. 1,34,718/- ON ACCOUNT OF C ONSUMABLE STORES/ELECTRICITY CHARGES, WAGES AND SALARIES. 3. ON APPEAL, THE LD. CIT(A) ALLOWED PART RELIEF TO THE ASSESSEE AND UPHELD THE ADDITION OF RS. 10,20,768/- ON ACCOUNT OF SALE OF SCRAP. HOWEVER, REMAINING ADDITIONS / DISALLOWANCES WERE CONFIRMED BY THE LD. CIT(A) AND HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE VERY OUTSET, SHRI ATUL MANDHAR, LD. COUNS EL FOR THE ASSESSEE POINTED OUT THAT THE LD. CIT(A), SHIMLA VIDE LETTER DATED 1 1.11.2009 IN ASSESSEES CASE RELATING TO ASSESSMENT YEAR 2006-07 CALLED FOR REMA ND REPORT FROM ITO, NAHAN. ACCORDING TO SHRI ATUL MANDHAR, LD. COUNSEL FOR THE ASSESSEE SHRI PRADEEP KUMAR, ITO, NAHAN VIDE LETTER DATED 30.11.2009 SUBMITTED R EMAND REPORT TO THE LD. CIT(A), SHIMLA. SHRI ATUL MANDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHILE PASSING THE IMPUGNED ORDER ON 20.4.2010, THE LD. CIT(A) HAS NOT CONSIDERED THE REMAND REPORT SUBMITTED BY SHRI PRADEEP KUMAR, ITO, NAHAN. SHRI ATUL MANDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T IN VIEW OF ABOVE REMAND REPORT, NO ADDITION / DISALLOWANCE IS SUSTAINABLE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. THE REMAND REPORT D ATED 30.11.2009 SUBMITTED BY ITO, NAHAN IS AVAILABLE AT PAGES 11 TO 14 OF ASSESS EES PAPER BOOK. IT IS A FACT THAT THE LD. CIT(A) HAS NOT CONSIDERED THE REMAND R EPORT OF THE ITO, NAHAN WHICH WAS DULY SOUGHT FOR BY THE LD. CIT(A) DURING APPELL ATE PROCEEDINGS. IN OUR OPINION, THIS VITAL DOCUMENT SUBMITTED BY THE ITO, NAHAN SHO ULD NOT HAVE BEEN IGNORED BY THE LD. CIT(A) WHILE DECIDING THE APPEAL OF THE ASS ESSEE. CONSIDERING THE ENTIRE ITA NO. 970/CHANDI/2010 AKHIL ENTERPRISES V. ITO 3 3 FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE T HE ORDER OF LD. CIT(A) IN TOTO AND REMAND THE MATTER TO LD. CIT(A) WITH THE DIRECT ION TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER TAKING INTO CONSIDERATION THE REMAND REPORT DATED 30.11.2009 SUBMITTED BY THE ITO, NAHAN . THE LD. CIT(A) SHOULD GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFOR E DECIDING THE APPEAL. WE ALSO DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE PREFERABLY WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. 5. SINCE WE HAVE RESTORED THE MATTER TO THE FILE OF LD. CIT(A) AND THEREFORE, WE DO NOT THINK IT NECESSARY TO GIVE OUR FINDINGS ON M ERITS OF THE CASE. 6. FOR STATISTICAL PURPOSES, APPEAL IS ALLOWED. ORDER PRONOUNCED ON 28.9.2011 (MEHAR SINGH) (H.L. KARWA) ACCOUNTANT MEMBER VICE PRESIDENT CHANDIGARH, THE .9.2011 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/ THE DR ITA NO. 970/CHANDI/2010 AKHIL ENTERPRISES V. ITO 4 4