M/s Lavanya Enterprises, Eluru V. The CIT Rajahmundry, Rajahmundry

MA 63/VIZ/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8413 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 10-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T LUCAS PETER
• Keywords: Opportunity of being heard

Judgement Text

M.P. NO.63/VIZAG/2011 LAVANYA ENTERPRISES, ELURU. IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER M.P. NO. 63 /VIZ/2011 (ARISING OUT OF ITA NO.118/VIZAG/2010) ASSESSME NT YEAR : 200 5 - 0 6 LAVANYA ENTERPRISES ELURU VS. CIT RAJAHMUNDRY (APPELLANT) (RESPONDENT) PAN NO. AAAFL 4446R APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI T. LUCAS PETER, CIT(DR) DATE OF HEARING : 12 .04.2012 DATE OF PRONOUNCEMENT : 13.04.2012 ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BE HALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 3.8.2011 IN ITA NO.118/VIZAG/2010 WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT PROPE RLY APPRECIATED THE EVIDENCE PLACED BEFORE IT, WITH REGARD TO THE EVIDE NCE FILED BEFORE THE ASSESSING OFFICER IN RESPONSE TO QUERY RAISED BY HI M IN RESPECT OF SHIPPING CHARGES AND THE EXPENDITURES INCURRED BY THE AGENTS AT HARBOR AND AIRPORT ON BEHALF OF THE ASSESSEE. THEREFORE, AN ERROR HAS CR EPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. 2. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEND ED THAT THE RELEVANT EVIDENCES WERE PLACED BEFORE THE A.O. IN RESPONSE T O QUERY RAISED BY HIM WITH REGARD TO THE SHIPPING CHARGES AND EXPENDITURE INCURRED BY AGENTS AT HARBOR AND AIRPORT ON BEHALF OF THE ASSESSEE BUT TH E CIT WAS NOT CONVINCED WITH IT AND MADE THE DISALLOWANCE OF THESE PAYMENTS INSTEAD OF DIRECTING THE A.O. TO RE-EXAMINE THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. M.P. NO.63/VIZAG/2011 LAVANYA ENTERPRISES, ELURU. 2 3. THE LD. D.R. ON THE OTHER HAND HAS SUBMITTED THA T DURING THE COURSE OF HEARING OF THE APPEAL, A SPECIFIC QUERY WAS RAIS ED FROM THE ASSESSEE WITH REGARD TO THE REPLY FILED IN RESPECT OF QUERY ON TH IS ISSUE RAISED BY THE A.O. BUT NOTHING WAS PLACED. THEREFORE, THE TRIBUNAL HA S RIGHTLY CONCLUDED THAT A.O. HAS NOT APPLIED HIS MIND TO THIS ISSUE AND THE CITS ORDER DESERVE TO BE CONFIRMED. THE LD. CIT(DR) HOWEVER AGREED THAT INS TEAD OF DECIDING THE ISSUE, THE CIT SHOULD HAVE DIRECTED THE A.O. TO RE- EXAMINE THE ISSUE AFTER HOLDING THE ASSESSMENT ORDER TO BE ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF THE REVENUE AFRESH AFTER AFFORDING AN OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 4. WE HAVE CAREFULLY EXAMINED THE MISCELLANEOUS APP LICATION VIS--VIS THE ORDER OF THE TRIBUNAL AND THE MATERIAL AVAILABLE ON RECORD AND WE FIND THAT THOUGH A QUERY WAS RAISED IN THIS REGARD, BUT NO RE PLY WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. MOREOVER, T HE ISSUE OF SHIPPING CHARGES AND EXPENDITURE INCURRED BY THE AGENTS AT H ARBOR AND AIRPORT ON BEHALF OF THE ASSESSEE WAS NOT AT ALL ADJUDICATED B Y THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE TRIBUNAL HAS CONFIRMED T HE ORDER OF THE CIT. WE HOWEVER, OF THE VIEW THAT CIT SHOULD HAVE ASKED THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AFRESH AFTER HOLDING THE ASSES SMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE INSTEAD OF ADJUDICATING THE ISSUE HIMSELF. WE THEREFORE OF TH E VIEW THAT MODIFICATION IN THE ORDER OF THE CIT WAS CALLED FOR BUT THE TRIBUNA L HAS NOT MODIFIED THE ORDER OF CIT AND THIS AMOUNTS TO AN ERROR CREPT IN THE ORDER OF THE TRIBUNAL. WE THEREFORE, MODIFY THE ORDER OF THE CIT TO THIS E FFECT AND DIRECT THE A.O. TO EXAMINE THE CLAIM OF PAYMENT IN RESPECT OF SHIPPING CHARGES AND EXPENSES INCURRED AT HARBOR AND AIRPORT AND SERVICE CHARGES AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORD INGLY, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 13.04.2012 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 13 TH APRIL, 2012 M.P. NO.63/VIZAG/2011 LAVANYA ENTERPRISES, ELURU. 3 COPY TO 1 M/S. LAVANYA ENTERPRISES, EASTERN ST REET, ELURU - 534 001 2 CIT, RAJAHMUNDRY 3 THE CIT (A) , RAJAHMUNDRY 4 THE DR, ITAT, VISAKHAPATNAM. 5 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM