M/s Wine Enterprises, Amritsar. v. The Joint Commissioner of Income Tax,, Amritsar.

ITA 315/ASR/2016 | 2011-2012
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 31520914 RSA 2016
Assessee PAN AAAFW4880A
Bench Amritsar
Appeal Number ITA 315/ASR/2016
Duration Of Justice 5 month(s)
Appellant M/s Wine Enterprises, Amritsar.
Respondent The Joint Commissioner of Income Tax,, Amritsar.
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 26-10-2016
Date Of Final Hearing 21-09-2016
Next Hearing Date 21-09-2016
Assessment Year 2011-2012
Appeal Filed On 26-05-2016
Judgment Text
IN THE INCOME TAX APPELLATE TR IBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY JUDICIAL MEMBER I.T.A. NO.315(ASR)/2016 ASSESSMENT YEAR: 2011-12 M/S. WINE ENTERPRISES SHOP NO.562 PUTLIGHAR AMRITSAR. PAN:AAAFW4880A VS. JCIT RANGE-3 AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PADAM BAHL (CA) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 29.09.2016 DATE OF PRONOU NCEMENT:26.10.2016 ORDER PER N. K. CHOUDHRY (JM): THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) AMRITSAR DATED 29.02.2016 FOR ASST. YEAR:2 011-12. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. (I) THAT THE LD. CIT(A) -1 AMRITSAR HAS GROSSLY E RRED IN DISMISSING THE APPEAL EXPARTE WITHOUT ALLOWING A REASONABLE OP PORTUNITY OF BEING HEARD.. (II) THAT THE LD. CIT(A)-1 AMRITSAR HAS FAILED TO APPRECIATE THAT THE AUTHORIZED REPRESENTATIVE HAD REQUESTED FOR TIME DU E TO TIME BARRING ASSESSMENT WORK UPTO 31.03.2016. (III) THAT THE LD. CIT(A)-1 AMRITSAR GROSSLY ERRED IN NOT DECIDING THE APPEAL ON MERITS OF THE CASE. (IV) THAT THE LD. CIT(A)-1 AMRITSAR HAS GROSSLY ER RED IN CONFIRMING THE ADDITION OF RS.7 99 842/- MADE BY JOINT COMMISS IONER OF INCOME TAX RANGE-III AMRITSAR ON ACCOUNT OF REJECT ION OF INPUT CREDIT ON VAT AND CAPITALIZED AS THE COST OF THE ASSET. I TA NO. 315(ASR)/2016 AS ST. YEAR: 2011-12 2 3. THE BRIEF FACTS OF THE CASE AS NOTED IN THE ASSESSMENT ORDER ARE THAT THE ASSESSEE IS A WHOLE SALE WINE MERCHANT AND IS O PERATING FROM PUNE. THE ASSESSEE FURNISHED THE RETURN OF INCOME THROUGH E-FILING AT RS.3 01 34 640/- ON 29.09.2011 U/S 143(1) OF THE I. T. ACT. THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS. NOTICE U/S 14 3(2) WAS ISSUED ON 07.09.2012 AND DULY SERVED UPON THE ASSESSEE ON 11. 09.2012. THE A.O OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCE EDINGS THE ASSESSEE HAS PURCHASED TWO CARS AND TRUCKS DURING THE F.Y.20 10-11 RELEVANT TO ASST. YEAR: 2011-12. IT IS ALSO OBSERVED THAT THE A SSESSEE HAS MADE PAYMENT OF VAT TO EXCISE AND TAXATION DEPARTMENT ON PURCHASE OF VEHICLES AS CARS & TRUCKS. THE ASSESSING OFFICER OB SERVED THAT THE PAYMENTS MADE ON VAT TO THE EXCISE AND TAXATION DEP ARTMENT ARE IN THE NATURE OF THE CAPITAL EXPENDITURE AND CAN NOT ALLOW ED TO PASS THOROUGH THE P&L A/C. HENCE THE SAME IS BEING DISALLOWED AS REVENUE EXPENDITURE AND CAPITALIZED AS COST OF THE ASSET . THE A.O HAS DISALLOWED RS.7 99 842/- AS INPUT CREDIT ON VAT PAI D AND CAPITALIZED AS THE COST OF THE ASSET. 4. FEELING AGGRIEVED BY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER THE ASSESSEE PREFERRED THE APPEAL BEFORE TH E LD. CIT(A) AND THE LD. CIT(A) HAS CONFIRMED THE DISALLOWANCE MADE BY THE A .O U/S. 43(1) OF THE I.T. ACT. BY OBSERVING ASUNDER: 02. FURTHER IT IS EMERGING FROM FACTS AND CIRCUMST ANCES OF THE CASE THAT THE APPELLANT IS NOT CARING TO COMPLY WIT H OPPORTUNITY NOTICES ISSUED U/S 250(1) OF THE INCOME TAX ACT.196 1. I TA NO. 315(ASR)/2016 AS ST. YEAR: 2011-12 3 SL NO. NOTICE DT. FIXATION DT. MODE SERVICE REMARKS NARRATING FATE. 1 22.09.2015 09.10.2015 N/S COUNSEL FOR THE ASSESSEE FILED APPLICATION FOR ADJ. CASE ADJ. TO 15.10.2015 2 15.10.2015 AGAIN FILED APPLICATION TO GIVE MORE SOME TIME TO PREPARE THE CASE. CASE ADJ. TO 28.10.2015 3 18.10.2015 REMAIN UNCOMPLIED & UNATTENDED AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FIELD 4 04.11.2015 17.11.2015 N/S REMAINED UNCOMPLIED & UNATTENDED AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 5 15.11.2015 31.12.2015 N/S REMAINED UNCOMPLIED & UNATTENDED AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 6 11.01.2016 22.01.2015 SPEED POST REMAINED UNCOMPLIED & UNATTENDED AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED UNDER THE CIRCUMSTANCES I AM OF THE VIEW THAT ASSE SSEE IS NOT INTERESTED IN PURSUING OF THE PRESENT APPEAL AND TH E SAME IS LIABLE TO BE DISMISSED ON THIS GROUND ITSELF. THE LAW ASSISTS TH OSE WHO ARE VIGILANT AND NOT THOSE SHOW SLEEP OVER THEIR RIGHTS. THE PRI NCIPLE IS WELL EMBODIED IN THE WELL KNOWN DICTUM VIGILANTIBUS NON DORMENT IBUS JURA SUBVENIUNT. IT IS CLEAR FROM THE FACTS AND CIRCUMSTANCES OF TH E CASE THAT THE AO HAS WRITTEN A WELL REASONED ORDER AND RIGHTLY MA DE AN ADDITION OF RS.7 99 842/- ON ACCOUNT OF DISALLOWANCE MADE U/S 4 3(1) OF THE INCOME TAX ACT 1961. THUS KEEPING IN VIEW OF THE GROUNDS O F APPEAL AND ASSESSMENT ORDER IT IS FOUND THAT THE AOS DECISIO N IS CORRECT. HENCE THE APPEAL IS DISMISSED FOR THE WANT OF PRESENTATION AN D ON MERIT ALSO. I TA NO. 315(ASR)/2016 AS ST. YEAR: 2011-12 4 5. FEELING AGGRIEVED BY THE ORDER OF LD. CIT(A) TH E ASSESSEE FILED THE INSTANT APPEAL WHICH IS UNDER CONSIDERATION. 6. AT THE OUTSET THE LD. AR SH. PADAM BAHL ARGUED THAT THE LD. CIT(A) HAS PASSED THE ORDER UNDER CHALLENGED IN HURRIED MA NNER AS HE HAD NOT GIVEN PROPER AND FARE OPPORTUNITY TO THE ASSESSEE T O REPRESENT THE CASE EVEN OTHERWISE THE LD. CIT(A) FAILED TO GIVE INDEP ENDENT REASONS WHILE UPHOLDING THE ASSESSMENT ORDER PASSED BY THE LD. AO . 6. ON THE CONTRARY IT WAS ARGUED BY THE LD. DR THA T IN THE IMPUGNED ORDER PARA NO.2 ITSELF SPEAKS THAT SIX OPPORTUNIT IES HAVE BEEN GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE HOWEVER THE AS SESSEE FAILED TO AVAIL THE OPPORTUNITIES AND DELIBERATELY DID NOT PARTICIP ATE TO DEMONSTRATE HIS CASE. 6.1 EVEN OTHERWISE THE LD. CIT(A) CONCLUDED BY CON FIRMING THE ASSESSMENT ORDER WHILE APPLYING HIS MIND INDEPENDEN TLY. 7. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AS IT REFLECTS FROM THE ORDER PASSED BY THE LD. CIT(A) IN PARA NO.2 THAT SEVERAL OPPORTUNITIES HAVE BEEN GIVEN TO THE ASSESS EE EVEN ON TWO DATES I.E. 9 TH OCT.2015 AND 15 TH OCT.2015 COUNSEL FOR THE ASSESSEE APPEARED AND SOUGHT ADJOURNMENT BY FILING APPLICATIONS HOWE VER ON THE NEXT DATE THE LD. AR/REPRESENTATIVE/ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) REASONS BEST KNOWN TO HIM. THE LD. CIT(A) CO RRECTLY APPLIED THE PRINCIPLE OF VIGILANTIBUS NON DORMENTIBUS JURA S UBVENIUNT HOWEVER IN OUR CONSIDERED OPINION THE LD. CIT(A) WAS CONSTRAINED TO I TA NO. 315(ASR)/2016 AS ST. YEAR: 2011-12 5 PASS AN ORDER IN THE ABSENCE OF THE ASSESSEE AS THE ASSESSEE REMAINED UNREPRESENTED. WE FIND THAT THE LD. CIT(A) ALTHOUG H PASSED EX-PARTE ORDER IN THE PECULIAR CIRCUMSTANCES AND WAS CORRECT TO THE EXTENT HOWEVER HE FAILED TO APPLY HIS MIND INDEPENDENTLY AND ALSO FAILED TO GIVE ANY INDEPENDENT REASONS WHILE UPHOLDING THE ASSESSM ENT ORDER THEREFORE WE FEEL IT APPROPRIATE THAT APPEAL HAS T O BE ADJUDICATED ON MERITS INDEPENDENTLY. BECAUSE THE ASSESSEE DELIBERA TELY FAILED TO ATTEND THE PROCEEDINGS AND EVEN AFTER AFFORDING MANY OPPOR TUNITIES DID NOT BOTHER TO CO-OPERATE WITH THE JUDICIAL PROCEEDINGS AND THE RESPONDENT IS BURDENED WITH THE UNNECESSARY LITIGATION THEREFORE WE ARE OF THE CONSIDERED OPINION JUSTICE WOULD BE MET IF ASSESSE E BE DIRECTED TO BE BURDEN WITH SOME REASONABLE COST HENCE IN THE AFO RESAID CIRCUMSTANCES THE APPEAL OF THE ASSESSEE IS ALLOWE D AND THE CASE IS REMANDED BACK TO THE FILE OF LD. CIT(A) TO DECIDE A FRESH ON MERITS WHILE AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE PARTIES SUBJECT TO DEPOSIT OF RS.5 000/- IN THE ARMY WELFARE FUND BATT LE CASUALTIES WITHIN 15 DAYS OF THE ORDER. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26. 10. 2016. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED:26.10.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: I TA NO. 315(ASR)/2016 AS ST. YEAR: 2011-12 6 (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER