VJ Development Ventures Pvt. Ltd., New Delhi V. ITO, Gurgaon

ITA 1019/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6409 (ITAT-DELHI)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 31-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K WADHWA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO.1019/DEL/2016 ASSESSMENT YEAR: 2008-09 M/S VJ DEVELOPMENT VENTURES VS. INCOME TAX OFFICE R, PRIVATE LIMITED, WARD 2(3), SKW & ASSOCIATES, GURGAON 204/6, COMMUNITY CENTRE, NARAINA-I, NEAR PVR, NEW DELHI 110 028 (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. S.K. WADHWA, CA REVENUE BY : NONE ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 28.12.2015 PASSED BY THE LD. CIT(A)-I, GURGAON RELA TING TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER(APPEALS) ERRED IN HOLDING THAT THE ACTION OF ASSESSING OFFICER IN MAKING THE ADDITION OF RS 21,42,210/- U/S 144, IS UPHELD WHILE HE WAS PROVIDED EVIDENCE THAT SHOW CAUSE NOTICES DT 16.07.2014 AND 121..08.2014 NEVER REACHED THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER (APPEALS) WAS NOT JUSTIFIED IN FORMING AN OPINION THAT ASSESSEE INTENTIONALLY AVOIDED 2 REMAND PROCEEDINGS BECAUSE HE WAS EXPLAINED THAT NOTICE WAS RECEIVED ON 06.11.2015 FOR THE DATE OF 03.11.2015. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER (APPEALS) WAS UNJUSTIFIED IN IGNORING THE SUBMISSION MADE BY THE ASSESSEE BEFORE HIM OF ALL THE INFORMATION AND EVIDENCES ASKED BY LD AO IN HIS REMAND PROCEEDINGS LIKE SERVICE TAX RETURNS, TDS RETURNS AND BANK REFERENCES, ETC. 4. THE ASSESSEE CRAVES LEAVE TO ADD/ALTER ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY THE ASSESSEE, HENCE, THE SAME ARE NOT REPEATED HER E FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE AS SESSEE HAS STATED THAT REVENUE AUTHORITIES HAS PASSED THE ORDER IN V IOLATION OF THE PRINCIPLE OF NATURAL JUSTICE AND WITHOUT GIVING ADE QUATE TIME AND OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE A ND TO FILE ITS REPLIES AND CLARIFICATIONS. HE REQUESTED THAT LD. CIT(A) HAS REMANDED BACK THE MATTER TO THE AO WHO GAVE A SINGLE OPPORTUNIT Y WHICH WENT A BEGGING BECAUSE IT WAS RECEIVED ON 6.11.2015 FOR DA TE OF 3.11.2015. HE FURTHER STATED THAT LD. CIT(A) HANDED OVER COPY OF REMAND REPORT ON 27.11.2015. ON 1.12.2015, THE ASSESSEE MADE REP RESENTATION TO THIS FACT TO LD. CIT(A) AND ENCLOSED SERVICE TAX R ETURNS, COMPLETE SET OF FINAL ACCOUNTS, CONFIRMATION OF PAYMENT OF COMMI SSION MADE TOGETHER WITH DETAIL OF SERVICE RENDERED BY THEM, T DS RETURNS AND COPY OF BANK ACCOUNTS TO SUPPORT THE PAYMENT OF COMMISSI ON MADE. HE FURTHER STATED THAT THE ASSESSEE WAS ASKED TO APPE AR BEFORE THE LD. CIT(A) ON 17.12.2015, BUT LD. CIT(A) INSTEAD CHOSE TO CLOSE OUR CASE 3 AND CONCURRED WITH THE VIEW OF THE AO SINCE THE AS SESSEE MISSED THE OPPORTUNITY OF DEFENDING ITS CASE DURING THE REMA ND PROCEEDINGS BEFORE THE AO. HE FURTHER STATED THAT LD. CIT(A) HA S DECIDED THE ISSUE AGAINST THE ASSESSEE EXPARTE AND WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THA T THE ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES WHICH CAN BE PRO DUCED BEFORE THE AO, IF THIS BENCH GRANTED AN OPPORTUNITY TO THE ASS ESSEE. 4. IN THIS CASE, NOTICE OF HEARING TO THE PARTIES WER E SENT, IN SPITE OF THE SAME, NONE APPEARED ON BEHALF OF THE REVENUE NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, I AM OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE REVENUE, THEREFORE, I AM DECIDING THE PRESENT APPEAL EXPART E QUA REVENUE, AFTER HEARING THE LD. AR OF THE ASSESSEE AND PERUSING THE RECORDS . 5. I HAVE HEARD LD. COUNSEL OF THE ASSESSEE AND CAR EFULLY GONE THROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW AND THE CONTENTION RAISED. I HAVE CAREFULLY GONE THROUGH THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT FACTS AND CIRCUMS TANCES OF THE CASE SHOWS THAT THE REVENUE HAS NOT GIVEN SUFFICIENT OP PORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM. THEREFORE, I N THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT THE MATTER REQUIRES THOROUGH EXAMINATION AT THE LEVEL OF THE AO, HENCE, THE ISS UES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH UNDER THE LAW, 4 AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE AO DURING THE PROCEEDINGS BEFORE HIM AND NOT TO TAKE ANY UNNECESS ARY ADJOURNMENT IN THE CASE AND ALSO PRODUCE ALL THE NECESSARY EVID ENCES/ DOCUMENTS BEFORE THE AO TO SUBSTANTIATE HIS CLAIM. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/12/2016 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 26/12/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 5