Sinetron Power Ltd, New Delhi v. ITO, New Delhi

ITA 4378/DEL/2009 | 2001-2002
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 437820114 RSA 2009
Assessee PAN AADCS4980R
Bench Delhi
Appeal Number ITA 4378/DEL/2009
Duration Of Justice 1 year(s) 8 month(s) 6 day(s)
Appellant Sinetron Power Ltd, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 22-07-2011
Date Of Final Hearing 18-07-2011
Next Hearing Date 18-07-2011
Assessment Year 2001-2002
Appeal Filed On 16-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE THE HONBLE VICEPRESIDENT SHRI G.E. VEERABHA DRAPPA AND SHRI I. P. BANSAL JUDICIAL MEM BER. I. T. A. NO. 4378 (DEL) OF 2009 ASSESSMENT YEAR : 2001-02. M/S. SINETRON POWER LIMITED THE INCOME-T AX OFFICER 78 BHERA ENCLAVE VS. W A R D : 8 (4) N E W D E L H I. N E W D E L H I. PAN / GIR NO. AADCS 4980R. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : ADJ. APP. REJECTED [SHRI ANKIT SIN GHAL] AR; DEPARTMENT BY : SHRI B. R. R. KUMAR SR. D. R. O R D E R. PER I. P. BANSAL JM : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY THE LD. CIT (APPEALS) DATED 14 TH SEPTEMBER 2009 FOR ASSESSMENT YEAR 2001-02. 2. GROUNDS OF APPEAL READ AS UNDER :- 1. THE ORDER OF THE CIT (A) IS BAD IN LAW AND ERR ONEOUS AND SHOULD THEREFORE BE SET ASIDE; 2. THE CIT (A) HAS FRAMED THE ORDER THAT THE FRESH EVIDENCE IS FILED WHICH IS BAD IN LAW AND FACT; 3. THE CIT (A) HAS ERRED IN LAW AND JUSTICE WHILE DECIDING THE APPEAL FILED; 2 I. T. A. NO. 4378 (DEL) OF 2009. 4. THE CIT (A) HAS ERRED IN LAW IN UPHOLDING THE D ISALLOWANCE OF THE TELEPHONE EXPENSES OF RS.55 205/-; 5. THE CIT (A) HAS ERRED IN LAW IN UPHOLDING THE D ISALLOWANCE OF THE CAR EXPENSES OF RS.35 534/-; 6. THE CIT (A) OFFICER HAS ERRED IN LAW AND FACT I N UPHOLDING THE ADDITION OF THE SUM RECEIVED FROM 5 PARTIES UNDER SECTION 68 OF THE INCOME TAX ACT 1961 OF RS.5 00 750/-. 3. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF POWER EQUIPMENTS. IT FILED ITS RETURN OF INCOME AT RS.57 500/-. IT WAS EARLIER ASSESSED VIDE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT 1961 [H EREINAFTER REFERRED TO AS THE ACT] ON 22 ND MARCH 2004 AT AN INCOME OF RS.2 09 386/-. SUBSEQU ENTLY AN INFORMATION WAS RECEIVED FROM LD. DIT [INVESTIGATION] NEW DELHI ACCORDING TO WHICH THE ASSESSEE HAD RECEIVED A CONSOLIDATED SUM OF RS.5 00 750/- FROM THE FOLLOWING PARTIES :- SL.NO. NAME OF PARTY AMOUNT NAME OF BANK & A/C. NO. 1. SATWANT SINGH SODHI CONST. (P) LTD. RS.1 0 0 150/- VIJAY BANK RAM NAGAR. ACCOUNT NO. 2321. 2. RAJKAR ELEC. PVT. LTD. RS.1 00 150/- -DO - ACCOUNT NO. 2442. 3. HARPAL ASSO. PVT. LTD. RS.1 00 150/- -DO - ACCOUNT NO. 2847. 4. FNS CONSULTANCY PVT. LTD. RS.1 00 150/- - DO- ACCOUNT NO. 2296. 4. IN PERUSING THE SAID INFORMATION RE-ASSESSMENT P ROCEEDINGS WERE INITIATED. ACCORDINGLY NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED F OR 15 TH JUNE 2007 ON WHICH DATE THE ASSESSEE SOUGHT ADJOURNMENT WHICH WAS GRANTED FOR 28 TH JUNE 2007. ON 28 TH JUNE 2007 NONE ATTENDED ON BEHALF OF THE ASSESSEE. THEREAFTER A FRESH NOTI CE WAS ISSUED ON 30 TH NOVEMBER 2007 FOR 7 TH DECEMBER 2007. ON THIS DATE NOBODY APPEARED AND T HE CASE BEING TIME-BARRING CASE THE ASSESSING OFFICER PROCEEDED WITH THE ASSESSMENT EX- PARTY QUA THE ASSESSEE AND HAS FRAMED IMPUGNED ASSESSMENT ORDER ON 26 TH DECEMBER 2007 UNDER THE PROVISIONS OF SECTION 144 / 148 OF THE ACT WHEREIN FOLLOWING ADDITIONS WERE MADE TO T HE ALREADY ASSESSED INCOME AFTER GIVING APPEAL EFFECT TO THE CIT (APPEALS) ORDER DATED 10 TH DECEMBER 2004 VIDE WHICH THE TOTAL INCOME WAS ESTIMATED AT RS.1 31 540/- IN PLACE OF RETURNED INCOME OF RS.57 500/- AS UNDER :- 3 I. T. A. NO. 4378 (DEL) OF 2009. 1. RS.5 00 750/- BEING RECEIVED FROM FIVE PARTIE S RS.5 00 750/- TAKEN UNEXPLAINED MONEY UNDER SECTION 68 (AS DI SCUSSED). 2. RS.55 205/- UNDER THE TELEPHONE EXP. (AS DISCUS SED) RS. 55 205/- 3. RS.35 534/- UNDER THE HEAD CAR EXPENSES (AS DIS CUSSED) RS. 35 534/-. IN THIS MANNER THE INCOME OF THE ASSESSEE HAS BEEN ASSESSED AT A SUM OF RS.7 23 029/-. THE ADDITIONS WERE CHALLENGED IN APPEAL FILED BEFORE TH E CIT (APPEALS). THE LD. CIT (APPEALS) HAS ALLOWED VARIOUS OPPORTUNITIES WHICH THE ASSESSEE EI THER DID NOT AVAIL OR SOUGHT ADJOURNMENT. ON THE LAST DATE OF HEARING I.E. 24 TH AUGUST 2009 THE ASSESSEE APPLIED FOR ADJOURNMENT FOR THE NEXT DATE FIXED FOR HEARING ON 26 TH AUGUST 2009. THE LD. CIT (APPEALS) HAS REJECTED THE SAID ADJOURNMENT APPLICATION OF THE ASSESSEE ON THE GROU ND THAT ATLEAST 24 ADJOURNMENTS WERE ALREADY ALLOWED TO THE ASSESSEE AND NO MORE ADJOURNMENT IS WARRANTED AND IN THIS MANNER THE CIT (APPEALS) HAS PROCEEDED TO DECIDE THE APPEAL ON MER ITS. 5. DURING THE COURSE OF HEARING OF THE APPEAL AN AP PLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS FILED BY THE ASSESSEE ON 11 TH FEBRUARY 2009 UNDER RULE 46-A OF INCOME-TAX RULES 1962. SUCH REQUEST OF THE ASSESSEE HAS BEEN REJECT ED BY THE LD. CIT (APPEALS) ON THE GROUND THAT THE CASE OF THE ASSESSEE DOES NOT FALL UNDER ANY OF THE ADDITIONAL OR EXCEPTIONAL CIRCUMSTANCES DESCRIBED UNDER RULE 46-A. ON MERITS THE LD. CIT ( APPEALS) HAS UPHELD THE FINDINGS RECORDED BY THE ASSESSING OFFICER AND IN THESE CIRCUMSTANCES TH E LD. CIT (APPEALS) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE. THE ASSESSEE IS AGGRIEVED HENCE IN APPEAL. 6. AN APPLICATION OF ADJOURNMENT HAS BEEN RECEIVED FROM THE COUNSEL OF THE ASSESSEE. HOWEVER IT WAS OBSERVED THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE NEED TO BE GIVEN AN OPPORTUNITY OF HEARING BEFORE T HE ASSESSING OFFICER WITH A DIRECTION TO FRAME DE NOVO ASSESSMENT. THEREFORE THE LD. DR WAS HEAR D ON THE ISSUE AND THE APPLICATION FILED BY THE ASSESSEE FOR ADJOURNMENT WAS REJECTED. 4 I. T. A. NO. 4378 (DEL) OF 2009. 7. THE LD. DR AFTER NARRATING THE FACTS PLEADED THA T IN VIEW OF SEVERAL OPPORTUNITIES GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER AND THE LD. C IT (APPEALS) THE ADDITION WAS JUSTIFIED AND HE SUBMITTED THAT THE ADDITIONS HAVE RIGHTLY BEEN UPHE LD BY THE LD. CIT (APPEALS) AND HIS ORDER SHOULD BE UPHELD. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. DR. WE HAVE ALSO CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AS WELL AS ORDER PASSED BY THE LD. CIT (APPEALS). IT IS OBSERVED FROM THE ASSESSMENT ORDER THAT THOUGH THE ASSESSING OFFICER IS SAYING THAT A FURTHER NOTICE-CUM-SHOW CAUSE WAS ISSUED ON 30 TH NOVEMBER 2007 FOR 7 TH DECEMBER 2007 BUT THE ASSESSING OFFICER HAS NOT RECORDED A FINDING THAT W HETHER OR NOT THAT NOTICE WAS SERVED UPON THE ASSESSEE AND AFTER SERVICE OF NOTICE THE ASSESSEE H AD FAILED TO APPEAR. IT IS ALSO A MATTER OF RECORD THAT ON FIRST NOTICE COUNSEL OF THE ASSESSEE HAD AP PEARED. 9. SIMILARLY FROM THE ORDER OF THE LD. CIT (APPEALS ) IT CAN BE SEEN THAT AN ADJOURNMENT APPLICATION WAS FILED BY THE ASSESSEE ON THE LAST D ATE OF HEARING. THUS IT CANNOT BE SAID THAT ASSESSEE WAS NOT INCLINED TO APPEAR EITHER BEFORE T HE ASSESSING OFFICER OR THE LD. CIT (APPEALS). IT IS SEEN FROM THE ASSESSMENT ORDER THAT ASSESSEE DID NOT GET PROPER OPPORTUNITY OF REPRESENTING ITS CASE AS IT HAS NOT BEEN SHOWN THAT THE NOTICE S ENT BY THE ASSESSING OFFICER WAS ACTUALLY SERVED UPON THE ASSESSEE. IF IT WAS SO THE REQUEST OF TH E ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE SHOULD HAVE BEEN ACCEPTED BY THE LD. CIT (APPEALS) WHICH ON THE FACE OF IT HAS BEEN REJECTED BY THE LD. CIT (APPEALS) WITHOUT GOING INTO THE CONTEN TS OF THE ADDITIONAL EVIDENCE WHICH ARE NOT EVEN FOUND TO BE DISCUSSED IN THE ORDER OF THE LD. CIT (APPEALS). 10. MOREOVER IT IS OBSERVED THAT EARLIER ALSO ASSE SSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 22 ND MARCH 2004 IN WHICH THE ISSUE REGARDING ENTIRE SH ARE APPLICATION MONEY OF RS.12 87 500/- WAS EXAMINED AND NOTICES UN DER SECTION 133(6) OF THE ACT WERE ISSUED BY THE ASSESSING OFFICER TO VARIOUS PERSONS / CONCE RNS AND OUT OF THE TOTAL AMOUNT ADDITION OF RS.25 000/- WAS MADE ONLY IN RESPECT OF SHARES-HOLD ING OF MR. MUKESH MANWANI AND MR. GAUTAM GUPTA WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE AGAINST WHICH THE APPEAL WAS 5 I. T. A. NO. 4378 (DEL) OF 2009. FILED BY THE ASSESSEE BEFORE THE LD. CIT (APPEALS) WHICH ADDITION OF RS.25 000/- WAS ALSO DELETED BY THE LD. CIT (APPEALS) IN HIS ORDER DATED 10 TH DECEMBER 2004 AND COPY OF THE ORDER OF THE LD. CIT (APPEALS) IS FILED AT PAGES 24 TO 35 OF THE PAP ER-BOOK. IF THAT ORDER IS CONSIDERED THEN IT CAN BE SAID THAT THERE WAS A MATERIAL ON RECORD EXISTIN G IN THE FILE OF THE DEPARTMENT VIDE WHICH THE NECESSARY EVIDENCES WERE FILED BY THE ASSESSEE BEFO RE THE ASSESSING OFFICER AND CONFIRMATIONS WERE ALSO OBTAINED FROM THE SHARE HOLDERS AND ADDIT ION FOR THE YEAR UNDER CONSIDERATION IN THE SUBSEQUENT ASSESSMENT PROCEEDINGS ARE MADE WITHOUT GIVING THE ASSESSEE REASONABLE AND SUFFICIENT OPPORTUNITY OF HEARING. KEEPING IN VIEW ENTIRETY OF FACTS WE ARE OF THE OPINION THAT THE MATTER REQUIRES TO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME DE NOVO ASSESSMENT AFTER GIVING THE ASSESSEE A REAS ONABLE AND SUFFICIENT OPPORTUNITY OF HEARING. WE DIRECT ACCORDINGLY. 11. AS WE ARE RESTORING ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRAMING DE NOVO ASSESSMENT WE DO NOT EXPRESS ANY OPINION ON MERITS WHICH WILL BE DECIDED BY THE ASSESSING OFFICER AS PER OUR DIRECTIONS GIVEN IN THE AFORE-ME NTIONED PART OF THIS ORDER. 12. FOR STATISTICAL PURPOSES THE APPEAL FILED BY T HE ASSESSEE IS TREATED TO BE ALLOWED IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT AFTER THE CL OSE OF HEARING ON : 22 ND JULY 2011. SD/- SD/- [ G. E. VEERABHADRAPPA ] [ I. P. BANSAL ] VICE PRESIDENT. JUDICIAL MEM BER DATED : 22 ND JULY 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 6 I. T. A. NO. 4378 (DEL) OF 2009. 2. RESPONDENT. 3. CIT 4. CIT (APPEALS) 5. DR ITAT NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR ITAT.