Viking Engineers Pvt. Ltd., Faridabad V. ACIT, New Delhi

ITA 993/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74083 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 31-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: P M MEHTA
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI J. S REDDY, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER I TA NO. 993 /DEL/ 2013 (ASSESSMENT YEAR: 2009 - 10 ) VIKING ENGINEERS PVT. LTD. PLOT NO. 285, SECTOR - 58, FARIDABAD, PAN AAACV0808L VS. INCOME TAX OFFICER, WARD - 4(1), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : P. M. MEHTA, FCA RESPONDENT BY: SAMEER SHARMA , SR. DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 19 , NEW DELHI DATED 15.11.2012 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER (APPEALS) HAS ERRED IN PASSING E X - PARTE ORDER. 2. THAT THE ASSESSEE HAS BEEN TAKING PROPER ADJOURNMENT ON THE DATE OF HEARING DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES. 3. THE DATE FIXED FOR HEARING ON 24.05.2012 WAS DULY ATTENDED TO BY THE AUTHORIZED REPRESENTATIVE BUT THE LD COMMISSION ER DID NOT TAKE UP THE MATER ON THE PLEA THAT HE WAS UNDER TRANSFER AND AS SUCH THE CASE WAS ADJOURNED S INEDYE. 4. THAT THE NOTICES DATED 29.01.2012, 15.12.2012 & 29.10.2012 WERE NEVER RECEIVED BY THE APPELLANT AND AS SUCH THE SAME COULD NOT BE COMPLIED WITH. 5. THAT IN MOST OF THE CASES THE NOTICES HAVE BEEN SERVED AT THE WRONG ADDRESS INSPITE OF THE FACT THE APPELLANT HAD CLEARLY MENTIONED THAT THE SERVICE OF THE NOTICES SHOULD BE AT PLOT NO. 285, SECTOR 58, FARIDABAD, HARYANA WHILE THE NOTICES WERE SE NT AT 95 SHEIKH SARAI, NEW DELHI. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD ASSESSING OFFICER IS WRONG IN DISALLOWING A SUM OF RS. 1,71,04,037/ - ON ACCOUNT OF AMOUNT DUE TO THE CREDITORS. PAGE NO. 2 7. THAT THE LD ASSESSING OFFICER DID NOT GIVE ANY OPPORTUNITY TO THE APPELLANT EITHER TO RECONCILE THE DIFFERENCE IN THE CONFIRMATIONS OR ALLOWED TIME TO GET CONFIRMATIONS FROM THOSE WHO HAD NOT RESPONDED TO THE NOTICES U/S 133(6). 8. THAT THE ASSESSEE COMPANY DEALS IN EXCISABLE PRODUCTS AND HAVE PROPER R ECORDS. ALL THE PURCHASES ARE ENTERED INTO AND THE ACCOUNTS ARE DULY AUDITED. 9. THAT ON ALL THE PURCHASES MADE BY THE APPELLANT, THE APPELLANT HAD TAKEN THE BENEFIT OF MODVAT CLAIM. 10. THAT THE PERSONNEL FROM EXCISE DEPARTMENT VERIFIED THE RECORDS OF T HE APPELLANT FROM TIME TO TIME AND HAVE NOT ADVERSELY COMMENTED ANY TIME. 11. THAT THE LD ASSESSING OFFICER DID NOT FIND ANY DISCREPANCIES IN THE BOOKS OF THE ASSESSEE OR PURCHASES OR SALE MADE BY THE APPELLANT COMPANY. 12. ON THE ABOVE FACTS THE LD COMMISSIONER (APPEALS) IS WRONG IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 13. THAT THE ADDITIONS MADE ARE AGAINST THE LAW AND FACTS OF THE CASE. 3. APROPOS GROUND NOS. 1 TO 5 . BY THESE GROUND S , THE ASSESSEE ASSAILS THE DECISION OF THE LD CIT(A) ON THE GROUND THAT IT WAS NOT HEARD BEFORE PASSING THE IMPUGNED ORDER. THEREFORE IT AMOUNTS TO VIOLATION OF NATURAL JUSTICE. AT THE OUTSET, THE LD AR SUBMITTED THAT THE IMPUGNED ORDER IS AN EX - PARTE ORDER AND THAT THE ASSESSEE HAD BEEN REGULARLY APPEARING BEFORE THE LD CIT(A) . HOWEVER, WHEN THE APPEAL WAS FIXED FOR HEARING ON 24.05.2012 , THE LD CIT(A) DID NOT TAKE UP THE MATTER ON THE PLEA THAT HE WAS ABOUT TO BE TRANSFER RED AND , AS SUCH , THE CASE WAS ADJOURNED SINE - D I E. ACCORDING TO THE LD AR , THEREAFTER, NOTICE S DATED 29.01.2012, 15.12.2012 AND 29.10.2012 WHICH WAS SUPPOSED TO HAVE BEEN SENT BY THE DEPARTMENT , WERE NEVER RECEIVED BY THE APPELLANT . BECAUSE OF THE SAID NON - RECEIPT OF THE NOTICES, THE AR COULD NOT REPRESENT THE ASSESSEE BEFORE THE CIT(A). IT WAS ALSO POINTED OUT BY THE LD AR THAT THE NOTICE S WERE SENT AND SERVED AT A WRONG ADDRESS , IN SPITE OF THE CLEAR INSTRUCTION /NOTICE TO THE DEPARTMENT AS TO THE ADDRESS OF THE ASSESSEE AS PLOT NO. 285, SECTOR 58, FARIDABAD, HARYANA ; WHEREAS THE NOTICE S WERE PURPORTEDLY SENT BY THE DEPARTMENT TO A WRONG ADDRESS I.E 95, SHEIKH SARAI, NEW DELHI . THUS THE LD AR PLEADS THAT IT WAS NOT BECAUSE OF THE FAULT OF THE ASSESSEE, THAT IT COULD NOT REPRESENT DURING HEARING OF THE APPEAL BEFORE THE LD CIT(A). 4. IN THE SAID CIRCUMSTANCES THE LD AR SUBMITS THAT SINCE THE NOTICE WERE NOT SERVED UPON AT THE CORRECT ADDRESS, THE AR COULD NOT REPRESENT BEFORE THE LD CIT(A) THEREFORE, PLEADED THAT THERE IS A CLEAR VIOLATION OF NATURAL JUSTICE AND THE ASSESSEE PAGE NO. 3 WAS PREVEN TED BY REASONABLE CAUSE FOR NOT APPEARING BEFORE THE LD CIT(A) AND THE IMPUGNED ORDER WHICH BEEN PASSED BEHIND ITS BACK NEEDS TO BE RE - ADJUDICATED AFTER HEARING HIM . THEREFORE, THE LD AR PLEADED THAT THE MATTER MAY BE REMANDED BACK TO THE LD CIT(A) FOR FRE SH ADJUDICATION. 5. THE LD D R RELIED ON THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS. FROM A PERUSAL OF THE IMPUGNED ORDER WE FIND THAT IT IS AN EX - PARTE ORDER AND FROM THE FACT S NARRATED BY THE LD AR, AND RECO RDS SUGGESTS THAT THE NOTICES WERE SENT TO ANOTHER ADDRESS AND THUS THE ASSESSEE WAS PREVENTED FROM REPRESENTING ITS CASE BEFORE THE LD CIT(A) FOR NO FAULT OF IT AND THEREFORE , WE FIND THAT THERE WAS REASONABLE CAUSE FOR THE NON - APPEARANCE OF THE ASSESSE E BEFORE THE LD CIT(A) DURING THE HEARING OF THE MATTER . IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AND FOR THE INTEREST OF JUSTICE WE FIND IT NECESSARY TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE LD CIT(A) ; THE DEPARTMENT MAY TAKE NOTE OF THE CORRECT ADDRESS OF THE ASSESSEE AND SERVE THE NOTICE TO THE CORRECT ADDRESS AND THE LD CIT(A) SHALL RE - ADJUDICATE THE MATTER. 7. IN THE RESULT THE IMPUGNED ORDER OF THE LD CIT(A) IS SET ASIDE AND WE DIRECT THE LD CIT(A) TO GIVE ADEQUATE OPPORTUNITY TO THE ASSESSEE AND PASS FRESH ORDER S AFTER HEARING THE ASSESSEE. 8. IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 .01.2014. - S D / - - S D / - ( J. S REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2 8 /01 / 201 4 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI