Kataria Logistic Services, Ahmedabad v. The Jt.CIT.,Range-9,, Ahmedabad

ITA 457/AHD/2009 | 2005-2006
Pronouncement Date: 29-12-2010 | Result: Allowed

Appeal Details

RSA Number 45720514 RSA 2009
Assessee PAN AAEFK6542K
Bench Ahmedabad
Appeal Number ITA 457/AHD/2009
Duration Of Justice 1 year(s) 10 month(s) 16 day(s)
Appellant Kataria Logistic Services, Ahmedabad
Respondent The Jt.CIT.,Range-9,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-12-2010
Date Of Final Hearing 29-12-2010
Next Hearing Date 29-12-2010
Assessment Year 2005-2006
Appeal Filed On 12-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL VP AND BHAVNESH SAINI JM) ITA NO.457/AHD/2009 A. Y.: 2005-06 KATARIA LOGISTICS SERVICES KATARIA PREMISES INSIDE PREM DARWAJA DARIAPUR AHMEDABAD VS THE J. C. I. T. RANGE-9 AHMEDABAD PA NO. AAEFK 6542 K (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SAKAR SHARMA AR RESPONDENT BY SHRI ROBIN RAWAL SR. DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XV AHMEDA BAD DATED 12 TH DECEMBER 2008 FOR ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN REFUSING TO GRANT ADJOURNMENT FOR ONE WORKING DAY TO SUBMIT REPLY TO SHOW CAUSE NOTICE ISSUED FOR ENHANCEMENT OF INCOME IN SPITE OF EXPLAINING THE REASONS IN PERSON ON THE DATE OF HEARING AND ON ACCOUNT OF COMPLEXITY INVOLVED IN THE MATTER. 2. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN REFUSING TO ACCEPT COMMUNICATION SENT THROUGH SPEED POST ON 12/12/2008 AND 13/12/2008 AND IN ITA NO.457/AHD/2009 KATARIA LOGISTIC SERVICES VS JCIT RANGE-9 AHMEDAB AD 2 PERSON BY COUNSEL REPRESENTING THE APPEALS TILL PRONOUNCEMENT OF APPELLATE ORDERS ON 17/12/2008 I.E. THE DATE OF COMMUNICATION TO THE APPELLANT. 3. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN ENHANCING ASSESSMENT BY RS.1 65 77 280/- ON ACCOUNT OF DISALLOWANCE OF FREIGHT PAYMENTS BY INVOKING PROVISIONS OF SECTION 40(A) (IA) OF THE AC T WITHOUT APPRECIATING THE CIRCULARS ISSUED BY CBDT AND LAW INTERPRETED BY THE COURTS/TRIBUNALS. 4. THE LEARNED CIT (A) ERRED ON FACTS AND IN LAW IN NOT DIRECTING THE ASSESSING OFFICER TO GRANT DEDUCTION OF RS.1 11 73 780/- BEING DISALLOWED BY INVOKING PROVISIONS OF SECTION 40(A) (IA) OF THE ACT IN A. Y . 2006-07 ON PAYMENT BASIS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 40(A) (IA) OF THE ACT OUT OF FREIGHT EXPENSES. TILL THE DATE OF THIS APPEAL NO S UCH RELIEF IS GRANTED BY THE ASSESSING OFFICER EITHER. 5. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN ENHANCING ASSESSMENT BY RS.71 75 926/- BY MAKING ADDITION U/S 68 WITHOUT APPRECIATING THE FACTS AND SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER. 6. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING DISALLOWANCE OF RS.21 950/- OUT OF TELEPHONE EXPENSES. 7. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING DISALLOWANCE OF RS.15 900/- OUT OF VEHICLE EXPENSES. 8. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING DISALLOWANCE OF RS.19 390/- OUT OF TRAVELING EXPENSES. ITA NO.457/AHD/2009 KATARIA LOGISTIC SERVICES VS JCIT RANGE-9 AHMEDAB AD 3 9. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING DISALLOWANCE OF RS.13 558/- OUT OF LOCAL CONVEYANCE. 10. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING DISALLOWANCE OF RS.3 030/- OUT OF CAR EXPENSES. 2. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT ON SIMILAR MATTER IN ISSUE THE ITAT AHMEDABAD BENCH IN THE CASE OF GROUP CASES OF KATARIA MOVERS AHMEDABAD IN ITA NO.418/AHD/2009 DATED 15-10-2010 AND IN THE CASE OF KATARIA TRANSPORT & CO. IN ITA NO.419/AHD/2009 DATED 03-11- 2010 SET ASIDE THE ORDERS OF THE LEARNED CIT(A) AND RESTORED THE M ATTER TO THE FILE OF THE LEARNED CIT(A) FOR DISPOSING OF THE ISSUES AFRE SH. HE HAS SUBMITTED THAT THE LEARNED CIT(A) GAVE ENHANCEMENT NOTICE AND THE ASSESSEE SOUGHT ADJOURNMENT WHICH HAS NOT BEEN APP RECIATED AND CONSIDERED PROPERLY. THEREFORE NO MEANINGFUL OPPOR TUNITY WAS GIVEN TO THE ASSESSEE TO MAKE PROPER REPRESENTATION BEFOR E THE LEARNED CIT(A). HE HAS SUBMITTED THAT SINCE IN THE GROUP CA SES ON IDENTICAL FACTS AND GROUNDS THE MATTER HAS BEEN RESTORED TO T HE FILE OF THE LEARNED CIT(A) THEREFORE THE ORDER OF THE LEARNED CIT(A) IN THIS CASE MAY ALSO BE SET ASIDE AND THE GROUNDS OF APPEAL MAY BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR DECISION AFRESH. COPIES OF BOTH THE ORDERS ARE FILED ON RECORD. COPIES OF THE SAME ARE GIVEN TO THE LEARNED DR. THE LEARNED DR CONCEDED THAT THE ISSUE IS COVERED BY THE ORDERS OF THE TRIBUNAL BY WHICH ON IDENTICAL IS SUES MATTER HAS BEEN RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR DECISION AFRESH. ITA NO.457/AHD/2009 KATARIA LOGISTIC SERVICES VS JCIT RANGE-9 AHMEDAB AD 4 3. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF HE ORDERS OF THE TRIBUNAL IN THE CASE OF KATARIA MOVER S AND KATARIA TRANSPORT & CO. (SUPRA) WE ARE OF THE VIEW THAT TH E MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LEARNED CIT(A). THE TRIBUNAL IN THE CASE OF KATARIA TRANSPORT & CO. HELD AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISIO N OF THE ITAT. WE FIND THAT THE ITAT IN THEIR ORDER DATE D 15- 10-2010 IN THE CASE OF KATARIA MOVERS VS JT. CIT IN ITA NO.418/AHD/2009 FOR AY 2005-06 ON IDENTICAL ISSUES HELD AS UNDER:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES. WE ARE OF THE CONSIDERED VIEW THAT THE REP LIES SOUGHT TO BE SENT BY THE ASSESSEE THROUGH POST SHOU LD BE CONSIDERED AND FRESH DECISION ON THE ISSUES RAISED BEFORE HIM BE TAKEN AFTER CONSIDERING THE REPLY OF THE ASS ESSEE AND ALSO GIVING OPPORTUNITY TO THE AO. AS A RESULT APP EAL FILED BY THE ASSESSEE FOR ASST. YEAR 2005-06 IS RESTORED BAC K TO THE FILE OF ID. CIT(A). THE APPEAL OF ASSESSEE IS ALLOW ED BUT FOR STATISTICAL PURPOSES. 5.1 INDISPUTABLY THE FACTS AND CIRCUMSTANCES I N THE INSTANT CASE ARE SIMILAR TO THE FACTS AND CIRCUMSTANCES IN THE A FORESAID DECISION OF THE ITAT IN THE CASE OF AN ASSOCIATE CONCERN AND THE ASSESSEE NOW SEEKS CONSIDERATION OF THEIR REPLY SENT THROUG H THE SPEED POST ON 12.12.2008 & 13.12.2008. EVEN THOUGH A NUMBER O F OPPORTUNITIES WERE PROVIDED BY THE LD. CIT(A) THE LD. AR WENT ON SEEKING ADJOURNMENTS ON ONE PRETEXT OR THE OTHER AN D NOW BEFORE US THE LD. AR ON BEHALF OF THE ASSESSEE PLEADED THAT AT LEAST THEIR REPLIES SOUGHT TO BE SUBMITTED THROUGH SPEED POST M AY BE CONSIDERED . CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE ESPECIALLY WHEN EVEN COPIES OF REPLIES SENT THROUGH SPEED POST HAVE NOT BEEN PLACED BEFORE US AND THIS IS NOT A CASE OF A MERE ROUTINE OR SIMPLE MATTER WE ARE OF THE OPIN ION THAT REPLIES SOUGHT TO BE SENT BY THE ASSESSEE THROUGH SPEED POS T NEED TO BE CONSIDERED AND A FRESH DECISION ON THE ISSUES RAISE D NOW IN APPEAL BEFORE US IS NECESSARY AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND OF COURSE AFTER ALLOWING AN OPPORTUNIT Y TO THE AO ALSO. IN THIS CONTEXT WE MAY REFER TO THE FOLLOWING OBSERVATIONS OF ITA NO.457/AHD/2009 KATARIA LOGISTIC SERVICES VS JCIT RANGE-9 AHMEDAB AD 5 THE HONBLE JUSTICE KRISHNA IYER J. AS HE THEN WAS IN A. IBRAHIM KUNJU'S CASE AIR 1970 KER 65 AT PAGE 67: '. . . . OPPORTUNITY SHOULD BE REAL AND NOT RITUALI STIC EFFECTIVE AND NOT ILLUSORY AND MUST BE FOLLOWED BY A FAIR CON SIDERATION OF THE EXPLANATION OFFERED AND THE MATERIALS AVAILABLE CU LMINATING IN AN ORDER WHICH DISCLOSES REASONS FOR THE DECISION SUFF ICIENT TO SHOW THAT THE MIND OF THE AUTHORITY HAS BEEN APPLIED REL EVANTLY AND RATIONALLY AND WITHOUT RELIANCE ON FACTS NOT FURNIS HED TO THE AFFECTED PARTY. NATURAL JUSTICE I MUST WARN CANNOT BE PERVERTED I NTO ANYTHING UNNATURAL OR UNJUST AND CANNOT THEREFORE BE TREATED AS A SET OF DOGMATIC PRESCRIPTIONS APPLICABLE WITHOUT REFERENCE TO THE CIRCUMSTANCES OF THE CASE. THE QUESTION MERELY IS IN ALL CONSCIENCE HAVE YOU BEEN FAIR IN DEALING WITH THAT MAN? IF YOU HAVE BEEN ARBITRARY ABSENT-MINDED UNREASONABLE OR UNSPEAKING YOU CANNOT DENY THAT THERE HAS BEEN NO ADMINISTRATI VE FAIR PLAY. ' 8. IN VIEW OF THE FOREGOING AND IN INTERE ST OF SUBSTANTIAL JUSTICE ESPECIALLY WHEN A VIEW HAS ALREADY BEEN TA KEN IN IDENTICAL CIRCUMSTANCES BY A CO-ORDINATE BENCH IN THEIR AFORE SAID IN THE CASE OF AN ASSOCIATE CONCERN WE CONSIDER IT FAIR AND AP PROPRIATE TO RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) W ITH THE DIRECTIONS TO READJUDICATE THE ISSUES NOW RAISED BEFORE US IN VA RIOUS GROUNDS IN ACCORDANCE WITH LAW AFTER CONSIDERING THE REPLIES S OUGHT TO BE SENT BY THE ASSESSEE THROUGH SPEED POST AS MENTIONED IN GROUND NO.2 IN THE APPEAL AND OF COURSE ALLOWING SUFFICIENT OPP ORTUNITY TO BOTH THE PARTIES. THE ASSESSEE SHALL ALSO DESIST FROM SE EKING ADJOURNMENTS UNNECESSARILY AND CO-OPERATE WITH THE LD. CIT(A) IN DISPOSING OF THE APPEAL EXPEDITIOUSLY. 9. IN THE RESULT APPEAL IS TREATED AS ALLOWED F OR STATISTICAL PURPOSES. 4. BY FOLLOWING THE ORDERS OF THE COORDINATE BENCH IN THE GROUP CASES ON THE IDENTICAL CIRCUMSTANCES WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATER TO HIS FILE WI TH DIRECTION TO RE- DECIDE THE APPEAL OF THE ASSESSEE AFRESH BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND THE AO IN ACCORDANCE WITH LAW. ITA NO.457/AHD/2009 KATARIA LOGISTIC SERVICES VS JCIT RANGE-9 AHMEDAB AD 6 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29-12-2010 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 29-12-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD