M/s Pharma Pet Industries,, Sirmour v. ITO,, Nahan

ITA 1068/CHANDI/2009 | 2006-2007
Pronouncement Date: 27-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 106821514 RSA 2009
Assessee PAN AAJFP0420G
Bench Chandigarh
Appeal Number ITA 1068/CHANDI/2009
Duration Of Justice 2 month(s) 14 day(s)
Appellant M/s Pharma Pet Industries,, Sirmour
Respondent ITO,, Nahan
Appeal Type Income Tax Appeal
Pronouncement Date 27-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 27-01-2010
Assessment Year 2006-2007
Appeal Filed On 13-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NO. 1068/CHD/2009 ASSESSMENT YEAR: 2006-07 M/S PHARMA PET INDUSTRIES VS. ITO NAHAN SHAMSHERPUR DISTT. SIRMOUR PAN NO. AAJFP 0420 G (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SHRI VIVEK AGGARWAL ORDER PER SUSHMA CHOWLA JM THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) SHIMLA DATED 8.9.2009 RELATING TO ASSESSMENT YEAR 2006-07 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE I.T. ACT. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L : 1. THAT THE LEARNED CIT(A) SHIMLA (HP ) HAS ERRED I N LAW AND ON THE FACTS OF THE CASE BY DISMISSING THE APPEAL OF THE APPELLANT FOR NON PROSECUTION AS THE APPELLA NT DID NOT RECEIVED ANY OF THE NOTICE FIXING THE HEARING A S SENT THROUGH POST BY HER OFFICE. 2. THAT WITHOUT PREJUDICE TO ABOVE THE LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE BY DISMISSING THE APPEAL FOR NON PROSECUTION AND NOT DECIDING THE SAME ON MERITS AS SHE OUGHT TO HA VE 2 DECIDED THE APPEAL ON MERITS EVEN IN THE ABSENCE OF THE APPELLANT AS THE APPELLATE AUTHORITY HAS NO JURISDI CTION TO DISMISS THE APPEAL FOR DEFAULT. 3. THAT WITHOUT PREJUDICE TO ABOVE ON MERIT THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER DESERVES TO BE DELETED FOR THE FOLLOWING APPARENT REASONS. 4. THAT WITHOUT PREJUDICE TO ABOVE ON MERITS THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER DESERVES TO BE DELETED FOR THE FOLLOWING APPARENT REASONS: A) ALL THE DEPOSITORS WERE ASSESSED TO TAX THEIR CONFIRMATIONS BANK STATEMENTS AND SOURCES OF FUND S IN THEIR HANDS WERE AVAILABLE BEFORE THE LEARNED ASSESSING OFFICER. B) TWO PERSONS OUT OF THE TOTAL THREE DEPOSITORS WERE PRODUCED AND HAD CONFIRMED THE DEPOSITS IN THEIR STATEMENTS ON OATH AS RECORDED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDING S AND THE THIRD DEPOSIT WAS NOT REQUIRED TO BE PRODUC ED. C) THE APPELLANT DID NOT CARRY ON ANY BUSINESS DURING THE YEAR UNDER REFERENCE AND WAS UNDER ERECTION AND BY NO MEANS COULD HAVE BEEN SAID TO HAVE EARNED ANY INCOME. D) THE AMOUNT ADDED AS INCOME WAS NOT THE INCOME OF TH E FIRM EVEN IN THE VIEW OF THE LEARNED ASSESSING OFFI CER WHO HAS HIMSELF MADE A FINDING THAT THE SAME WAS TH E MONEY OF THE PARTNERS OF THE FIRM NEEDS TO BE ADDED TO THE INCOME OF THE APPELLANT FOR THE YEAR . 3 3. DESPITE SERVICE OF NOTICE NONE APPEARED ON BEHA LF OF THE ASSESSEE AND WE PROCEED TO DISPOSE OF THE APPEAL AFTER HEARI NG THE LEARNED DR FOR THE REVENUE. 4. FROM THE PERUSAL OF RECORD WE FIND THAT THE APP EAL IN THE PRESENT CASE HAD BEEN FILED AFTER A DELAY OF 3 DAYS. THE A SSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE PRESENT APPEAL. SINCE THE MISSION DIRECTOR HAD GONE TO DELHI TO ATTEND A MEET ING IN THE MINISTRY OF HEALTH AND THEREAFTER HE PROCEEDED ON A LONG LEAVE FROM DELHI ITSELF THE APPEAL PAPERS WERE GOT SIGNED FROM THE CONTROLLER ( FINANCE) AND HENCE THE DELAY IN FILING THE PRESENT APPEAL. IN THE CIRCUMS TANCES OF THE CASE WE FIND THAT THE ASSESSEE WAS PREVENTED BY A SUFFICIEN T CAUSE FROM NOT FILING THE APPEAL IN TIME. WE CONDONE THE DELAY IN FILING THE PRESENT APPEAL AND TAKE THE SAME ON RECORD. 5. THE ASSESSEE BY WAY OF GROUND NO. 1 OF APPEAL HA D RAISED THE PRELIMINARILY ISSUE OF DISMISSAL OF APPEAL BECAUSE OF NON PROSECUTION BY THE ASSESSEE. THE ASSESSEE FURTHER CLAIMS THAT TH E NOTICE FOR HEARING WAS NOT RECEIVED BY THE ASSESSEE AND HENCE THERE WAS A DEFAULT IN APPEARANCE BEFORE THE CIT(A). 6. UNDER THE PROVISIONS OF SECTION 246A OF THE I.T. ACT ON APPEAL LIES BEFORE THE CIT(A) AGAINST THE ORDER PASSED BY THE A SSESSING OFFICER AS ENLISTED IN CLAUSE (A) TO (R) OF SECTION 246A (1) O F THE I.T. ACT. THE FORM OF APPEAL ALONGWITH REQUISITE APPEAL FEE AND THE PE RIOD OF LIMITATION IS PRESCRIBED IN SECTION 249 OF THE ACT. THE PROCEDURE FOR DISPOSING OF THE APPEAL I.E. FIXING THE DATE OF HEARING OF APPEAL AN D GIVING NOTICE TO THE PRESCRIBED PERSON IS PROVIDED U/S 250 OF THE ACT. UNDER SECTION 250 (6) 4 OF THE ACT IT IS PROVIDED THAT WHILE DISPOSING OF AN APPEAL THE ORDER OF CIT(A) SHALL BE IN WRITING AND SHALL STATE THE POIN TS FOR DETERMINATION OF THE DECISION THEREON AND THE REASONS FOR THE DECISI ONS. THE CIT(A) WHILE DECIDING THE PRESENT APPEAL HAS FAILED TO ADDRESS T HE ISSUES ON THE MERITS OF THE CASE AND HAS SUMMARILY DISMISSED THE APPEAL BECAUSE OF NON PROSECUTION OF THE NOTICE BY THE ASSESSEE. WE FIND MERIT IN THE GROUND NO.1 RAISED BY THE ASSESSEE AND FOLLOWING THE PRINC IPLE OF NATURAL JUSTICE WE RESTORE THE MATTER BACK TO THE FILE OF CIT(A). A REASONABLE OPPORTUNITY OF HEARING SHALL BE PROVIDED TO ASSESSEE BY THE CIT (A). WE ARE NOT ADDRESSING THE ISSUE ON THE MERITS OF THE CASE AS T HE SAME HAD NOT BEEN ADJUDICATED UPON BY THE CIT(A). THE GROUNDS OF APP EAL RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 7. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF JANUARY 2010. SD/- SD/- (G.S.PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27 TH JANUARY 2010 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR