Jagdhamba Industries, Noida v. ITO Ward-2, Noida

ITA 3172/DEL/2008 | 2004-2005
Pronouncement Date: 08-01-2010 | Result: Allowed

Appeal Details

RSA Number 317220114 RSA 2008
Bench Delhi
Appeal Number ITA 3172/DEL/2008
Duration Of Justice 1 year(s) 2 month(s) 19 day(s)
Appellant Jagdhamba Industries, Noida
Respondent ITO Ward-2, Noida
Appeal Type Income Tax Appeal
Pronouncement Date 08-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 08-01-2010
Date Of Final Hearing 04-01-2010
Next Hearing Date 04-01-2010
Assessment Year 2004-2005
Appeal Filed On 20-10-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER & SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO. 3172 /DEL/2008 ASSESSMENT YEAR: 2004-05 M/S JAGDHAMBA INDUSTRIES VS. INCOME TAX OFFICER W-42 SECTOR-11 NOIDA. WARD-2 NOIDA. PAN NO. AAEFJ06101D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL SHARMA ADV. RESPONDENT BY : SH. B.K. GUPTA SR. DR ORDER PER I.P. BANSAL J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER OF CIT(A) DATED 21 ST JULY 2008 FOR A.Y. 2004-05. 2. AS PER GROUND NO. 1 MAIN GRIEVANCE OF THE ASSESS EE IS REGARDING NON-GRANT OF PROPER OPPORTUNITY TO THE ASSESSEE BY THE AO. IN GROUND NO. 2 TO 7 ASSESSEE HAS CHALLENGED THE SUSTENANCE OF ADDI TIONS MADE BY AO BY THE LD. CIT(A) AND GROUND NO. 8 IS REGARDING CHARGI NG OF INTEREST U/S 234B. 3. RETURN OF INCOME WAS FILED BY THE ASSESSEE AT AN INCOME OF RS. 12 606/- WHICH HAS BEEN ASSESSED AT AN INCOME OF RS . 10 54 639/- BY MAKING VARIOUS ADDITIONS. ACCORDING TO ASSESSMENT ORDER VARIOUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE WHICH WERE NOT AVAILED. IN ITA NO. 3172/DEL/08 2 ABSENCE OF EXPLANATION AND EVIDENCES REQUIRE TO BE FURNISHED THE AO HAS MADE THE ADDITIONS BY DISCUSSING THEM IN THE ASSESS MENT ORDER WHICH IS DATED 31 ST OCTOBER 2006. 4. IN THE STATEMENT OF FACTS/ GROUNDS OF APPEAL FIL ED BEFORE CIT(A) AS PER GROUND NO. 1 IT HAS BEEN STATED AS UNDER: - 1. THAT THE ASSESSMENT AS PASSED BY THE LD. ITO IS ARBITRARY UNJUST ILLEGAL AND IMPROPER AND NO PROP ER OPPORTUNITY WAS AFFORDED TO THE APPELLANT TO EXPLAI N THE CASE AS RAJESH ARORA CA ATTORNEY OF THE APPELLANT WAS S UFFERING FROM ACUTE MIGRAINE PAIN DURING THE MONTH OF AUGUST AND SEPTEMBER 2006 AND THE FACT WERE EXPLAINED BEFORE THE ITO. RAJESH ARORA CA APPEARED ON 28.10.2006 WITH DOCUMENTARY EVIDENCE BUT LD. ITO DID NOT ENTERTAIN TO HIM WHENEVER ASSESSMENT ORDER WAS PASSED ON 31.10.06. APPELLANT SHOULD NOT SUFFER ON THE GROUNDS OF NON- APPEARANCE BY THE C.A. 5. IN THE WRITTEN SUBMISSIONS FILED BEFORE CIT(A) S IMILAR CONTENTION WAS RAISED WHICH HAS BEEN REPRODUCED BY CIT(A) IN PARA 4 OF IMPUGNED ORDER AND FOR THE SAKE OF CONVENIENCE THE SAME IS REPRODU CED BELOW: - THE ASSESSEE M/S JAGDAMBA INDUSTRIES IS A PARTNERS HIP FIRM WHICH WAS ENGAGED IN MINI STEEL ROLLING MILL A ND HAD TO TEMPORARILY CLOSE ITS BUSINESS IN YR. 2000 DUE TO C ONTINUOUS LOSSES/INCREASE OF EXCISE DUTY/ERRATIC POWER SUPPLY BY THE STATE ELECTRICITY BOARD AND TO SURVIVE IT HAD TO GI VE SOME PORTION OF THE FACTORY BUILDING ON RENT TO VARIOUS PARTIES AFTER KEEPING SPACE FOR STORAGE OF ITS PLANT & MACHINERY. THE CASE FOR THE RELEVANT YEAR WAS PICKED UP FOR SCRUTINY AND PROCEEDINGS WERE STARTED IN JULY 2006 AND ITA NO. 3172/DEL/08 3 COMPLETED IN OCTOBER 2006. THE COUNSEL TO THE ASS ESSEE UNDERSIGNED WAS SUFFERING FROM ACUTE MIGRAINE DURI NG THOSE DAYS FOR THIS ADJOURNMENTS WERE SOUGHT MANY TIMES. THE LAST DAY WAS FIXED ON 27.10.06 IN SPITE OF THE FACT THAT CASE WAS TIME BARRING ON 31.03.07. AND ON THAT DAY FURT HER ADJOURNMENT WAS SOUGHT FOR FEW DAYS WHICH WAS NOT GRANTED OFFICIALLY BUT ASKED TO SUBMIT ALL THE PEND ING DETAILS BEFORE 31 ST OCTOBER 2006 AS THIS CASE WAS TO BE COMPLETED IN OCTOBER 2006 ONLY. ON 28 TH OCTOBER 2006 UNDERSIGNED HAS VISITED THE LD. AO WITH A COMPLETE LIST AND ENC LOSURES FOR THE PENDING DETAILS WHICH WERE REFUSED TO BE TAKEN BY THE LD. AO AND INFORMED THAT CASE HAS BEEN COMPLETED ON THE BASIS OF MATERIAL ON RECORD WHEREAS ORDER WAS PASSED ON 31 ST OCTOBER 2006. THUS PROPER OPPORTUNITY WAS NOT GIVEN TO PRESENT THE CASE BEFORE THE LD. AO. THE APPELLANT SHOULD NOT S UFFER ON THE GROUND OF NON-APPEARANCE BY THE COUNSEL. THE V ARIOUS ADDITIONS MADE BY THE LD. AO ARE OPPOSED AS HEREUND ER. 6. THIS GRIEVANCE OF THE ASSESSEE IS DISPOSED OF BY LD. CIT(A) VIDE PARA 7 & 8 AFTER GETTING THE REMAND REPORT FROM AO: - 7. I HAVE CONSIDERED THE SUBMISSIONS AS WELL AS TH E REJOINDER OF LD. AR. I HAVE ALSO CONSIDERED THE FA CTS OF THE CASE AS BROUGHT OUT BY THE AO IN THE ASSESSMENT ORD ER AS WELL AS IN THE REMAND REPORT. 8. VIDE GROUND NO. 1 THE APPELLANT HAS CHALLENGED THE ASSESSMENT ORDER ON THE GROUND THAT THE AO HAS PASS ED THE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HE ARD. THE GROUND TAKEN BY THE APPELLANT HAS BEEN CONSIDERED A LONG WITH THE MATERIAL AVAILABLE ON RECORD. PERUSAL OF R ECORDS REVEALS THAT DURING ASSESSMENT PROCEEDINGS THE AO H AS ALLOWED THE ASSESSEE VARIOUS OPPORTUNITIES OF BEING HEARD I.E. ON 18.7.06 24.07.06 10.08.06 17.08.06 23.0 8.06 ITA NO. 3172/DEL/08 4 06.09.06 28.09.06 18.10.06 AND 27.10.06. IN SPIT E OF NUMBER OF OPPORTUNITIES PROVIDED THE ASSESSEE HAS N EITHER FURNISHED COMPLETE DETAILS/EVIDENCES TO SUPPORT HIS CASE NOR HAS FURNISHED COMPLETE INFORMATION AS REQUIRED BY T HE AO. THE AO HAS POINTED OUT THAT THE CASE WAS FINALLY AD JOURNED TO 27.10.06 WHEN THE AR OF THE ASSESSEE APPEARED AN D FILED A WRITTEN REPLY WHICH HOWEVER DID NOT CONTAIN THE INFORMATION AS REQUIRED. THUS THE CONTENTION OF T HE LD. AR THAT NO PROPER OPPORTUNITY OF BEING HEARD WAS PROVI DED TO THE ASSESSEE DOES NOT APPEAR TO BE INCORRECT. THE FACTS ON RECORD CLEARLY SHOW THAT THE AO HAS ALLOWED THE ASS ESSEE NUMBER OF OPPORTUNITIES TO EXPLAIN HIS CASE BUT FA ILED TO FURNISH THE NECESSARY DETAILS/EVIDENCES. IN VIEW O F THIS THE GROUND TAKEN BY THE APPELLANT ON THIS SCORE IS DISM ISSED. 7. REFERRING TO THE GRIEVANCE OF THE ASSESSEE AFTE R NARRATING THE FACTS IT WAS SUBMITTED BY LD. COUNSEL OF THE ASSESSEE THAT A LL THE REQUISITE EVIDENCES ALONG WITH LETTER WERE FURNISHED BY THE A SSESSEE BEFORE AO ON 28 TH OCTOBER 2006. HE IN THIS REGARD REFER TO THE LET TER OF ASSESSEE DATED 27 TH OCTOBER 2006 ALONG WITH ENCLOSURES SUBMITTING ALL THE EVIDENCES AND EXPLANATION A COPY OF WHICH IS PLACED AT PAGES 73 TO 85 OF THE PAPER BOOK. IT WAS FURTHER SUBMITTED THAT A COPY OF LETTER DATE D 28 TH OCTOBER 2006 WITH ENCLOSURE SUBMITTED TO CIT(A) WHICH WAS REFUSED BY THE AO AND COPY OF WHICH IS PLACED AT PAGES 86 TO 156 OF THE PAPER BOO K. REFERRING TO ALL THESE DOCUMENTS IT WAS SUBMITTED THAT LD. CIT(A) WAS WRO NG IN HOLDING THAT THE ASSESSEE WAS PROVIDED WITH THE SUFFICIENT OPPORTUNI TY AND THEREFORE THERE WAS NO MERIT IN THE GROUND NO. 1 TAKEN BY THE ASSES SEE. IT WAS SUBMITTED THAT ASSESSMENT ORDER WAS PASSED ON 31 ST OCTOBER 2006. THUS THE AO WAS UNJUSTIFIED IN NOT TAKING ON RECORD THE SAID LE TTER OF THE ASSESSEE AND ITA NO. 3172/DEL/08 5 THEREFORE THE LD. CIT(A) WAS WRONG IN HOLDING THAT REASONABLE AND SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE AO. H E SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO GRANT THE ASSESSEE A REASONABLE OPPORT UNITY OF HEARING AND THEN TO FRAME THE ASSESSMENT ACCORDING TO LAW. 8. ON THE OTHER HAND IT WAS VEHEMENTLY SUBMITTED B Y LD. DR THAT AO GRANTED REASONABLE AND SUFFICIENT OPPORTUNITY TO TH E ASSESSEE AND HE IN THIS REGARD REFER TO THE OBSERVATION OF AO IN THE ASSESS MENT ORDER WHEREBY IN PARA 2 THE AO HAS INDICATED VARIOUS DATES ON WHICH THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING. HE SUBMITTED THAT ON NONE OF THESE DATES THE ASSESSEE HAD SUBMITTED THE EXPLANATION AND EVID ENCES THEREFORE THE AO WAS RIGHT IN DECIDING THE ISSUES AND CIT(A) WAS RIGHT IN HOLDING THAT SUFFICIENT AND REASONABLE OPPORTUNITY WAS GRANTED T O THE ASSESSEE. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT AO HAD GRANTED THE ASSESSEE VARIOUS OPPORTUNITIES AND ASSESSEE DID NOT SUBMIT R EQUIRE DETAILS AND THUS THE ASSESSEE FAILED TO AVAIL THOSE OPPORTUNITIES. BUT EVEN IF BEFORE THE DATE OF ASSESSMENT ORDER IF ANY LETTER IS SUBMITTED BY THE ASSESSEE TO SUBSTANTIATE ITS CASE THEN THE SAME CANNOT BE REFU SED TO BE TAKEN ON RECORD AS IT WILL BE AGAINST THE PRINCIPLES OF NATU RAL JUSTICE. ANY SUBMISSION EXPLANATION EVIDENCE EVEN IF IT IS SUBMITTED ON TH E LAST DATE OF HEARING TILL THE ASSESSMENT ORDER IS PASSED HAS TO BE CONSIDERE D BY THE AUTHORITY. KEEPING IN MIND THIS FACT WE ARE OF THE OPINION TH AT LD. AO WAS NOT RIGHT IN NOT ACCEPTING THE SAID SUBMISSION OF THE ASSESSEE E VEN THOUGH MADE AFTER ITA NO. 3172/DEL/08 6 THE CLOSE OF HEARING BUT BEFORE PASSING THE ASSESSM ENT ORDER. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF LD. CIT(A) THE RELEVANT PORTION OF WHICH IT HAS BEEN REPRODUCED ABOVE BUT WE FOUND THAT HE HAS ALSO NOT SPECIFICALLY ADDRESSED THE GRIEVANCE OF THE ASSESSEE REGARDING I TS LATEST LETTER SOUGHT TO BE SUBMITTED TO AO WHICH WAS REFUSED TO BE TAKEN ON RECORD. IN ANY CASE CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE WE AR E OF THE OPINION THAT IT WILL BE FAIR IF THE ASSESSMENT IS RESTORED TO THE FILE OF AO WITH A DIRECTION TO PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF HE ARING AND THEREAFTER REFRAME ASSESSMENT IN ACCORDANCE WITH LAW. WE DIRE CT ACCORDINGLY. 10. AS WE HAVE RESTORED THIS ASSESSMENT TO THE FILE OF AO WE DO NOT EXPRESS ANY OPINION ON MERITS OF THE ADDITIONS RAIS ED BY THE ASSESSEE IN ITS GROUNDS OF APPEAL AS THE SAME WILL BE RECONSIDERED BY THE AO AS PER DIRECTIONS GIVEN BY US IN THE ABOVE PART OF THIS OR DER. 11. WITH THESE OBSERVATIONS THE APPEAL FILED BY THE ASSESSEES IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01.2010 (A.K. GARODIA) (I.P. BANSAL ) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: *KAVITA CHOPRA ITA NO. 3172/DEL/08 7 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR