Abhishek Kumar, New Delhi V. ITO, Ward-1(3), Gurgaon

ITA 1035/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9875 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KANISHKA AGGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; TDS; Set aside; FORM 26AS
• Section: 143(2); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1035/DEL/2019 [ASSESSMENT YEAR: 2009-10] ABHISHEK KUMAR, VS. ITO, WARD-1(3), C/O G.K. KEDIA & CO., GURGAON 812, NAURANG HOUSE, B-BLOCK, 21, KASTURBA GANDHI MARG, CONNAUGHT PLACE, NEW DELHI 110 001 (PAN: ALQPK6745F) [APPELLANT] [RESPONDENT] ASSESSEE BY: SMT. SANGEETA SINGH, CA & MS. KANISHKA AGGARWAL, CA REVENUE BY : SH. PRADEEP SINGH GAUTAM, S R. DR. ORDER THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS]-1, GURGAON DAT ED 12.11.2018 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOW ING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE EXPARTE ASSESSMENT ORDER PASSED BY AO U/S. 144 OF THE INCOME TAX ACT, 1961 DATED 05.12.2011 IS VOID-AB-INITIO AS IT IS NOT PROCEEDED BY PROPER SERVICE OF STATUTORY NOTICE U/S . 143(2) OF THE INCOME TAX ACT, 1961 AND LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE ON THE POINT, THE EXPARTE ASSESSMENT ORDER PASSED BY THE AO U/S. 144 OF THE ACT DATED 5.12.2011 IS VOID AB INITIO AS AO HAS NOT EXHAUSTED ALL MEANS OF COMMUNICATION WITH APPELLANT. 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE AO HAS ERRED IN RAISING DEMAN D OF RS. 2,72,630/- AND LD. CIT(A) HAS ERRED IN CONFIRMING THE SAME WHICH IS AGAINST THE PRINCIPLE S OF NATURAL JUSTICE AND PROVISIONS OF LAW; HENCE, L IABLE TO BE QUASHED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, AO HAS ERRED IN ACCEPTING FACTUAL LY WRONG RETURN FILED BY THE APPELLANT AND DID NOT TAK E THE CORRECT FIGURES WHILE PROCESSING THE COMPUTATI ON OF INCOME. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D LAW ON THE POINT, AO HAS ERRED IN DISALLOWING THE DEDUCTION OF RS. 2,84,679/- ON ACCOUNT OF INTEREST ON BORROWED CAPITAL CLAIMED U/S. 24(B) OF THE INCOME TAX ACT, 1961 AND LD. CIT(A) HAS ALSO ERRED IN CONFIRMING THE SAME. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, AO HAS ERRED IN TREATING RENTAL INCOME FROM HOUSE PROPERTY AT RS. 2,84,679/- AS AGAINST LOSS FROM HOUSE PROPERTY OF RS. 2,84,679/- DECLARED BY THE APPELLANT IN THE RETURN OF INCOME AND LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THIS GROUND OF APPEAL ON MERIT. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, AO HAS ERRED IN NOT ALLOWING FUL L TDS CREDIT OF RS. 1,07,575/- AS REFLECTING IN FORM 26AS. 8. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, MODIFY , SUBSTANTIATE, DELETE AND / OR TO RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARIN G, IF NECESSITY SO ARISES. 3 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT AO AS WELL AS LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPO RTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE THEM. SHE ON LY REQUESTED THAT THE ISSUES RAISED VIDE GROUND NO. 4 TO 7 IN THIS APPEA L REQUIRE THOROUGH INVESTIGATION AND EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER. HENCE, SHE REQUESTED TO SET ASIDE THE GROUND NO. 4 TO 7 TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORD ANCE WITH LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SHE FURTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY E VIDENCES FOR SUBSTANTIATING THE CLAIM BEFORE THE ASSESSING OFFIC ER AND WILL NOT SEEK ANY UNNECESSARY ADJOURNMENT, IF THIS BENCH SET ASI DE THE ISSUES INVOLVED IN GROUND NO. 4 TO 7 TO THE FILE OF THE ASSESSING O FFICER FOR FRESH ADJUDICATION. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. I FIND CONSI DERABLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT AO AS WELL AS LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE THEM. I FURTHER FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THA T GROUND NO. 4 TO 7 RAISED IN THIS APPEAL REQUIRE THOROUGH INVESTIGATIO N AND EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER. HENCE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE GROUND NO. 4 TO 7 TO THE FILE OF THE AS SESSING OFFICER FOR THOROUGH INVESTIGATION/EXAMINATION AND THEN DECIDE THE SAME AFRESH, IN ACCORDANCE WITH LAW, AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE WITH THE DIRECTION TO CONSIDER EACH AN D EVERY EVIDENCE/DOCUMENT TO BE FILED BY THE ASSESSEE. AS SESSEE IS AT LIBERTY TO 4 FILE ANY EVIDENCE/DOCUMENT BEFORE THE ASSESSING OFF ICER FOR SUBSTANTIATING HIS CLAIM AND WILL NOT SEEK ANY UNNECESSARY ADJOUR NMENT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 06.01.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:06-01-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI