Shri Ashwani Khanna, New Delhi V. ITO, New Delhi

ITA 1040/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8042 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 12-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Principle of natural justice; Accommodation entries
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A - SMC , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 104 0 /DEL/2016 : ASSTT. YEAR : 2004 - 05 SHRI ASHWANI KHANNA, A - 131/5, WAZIRPUR INDL. AREA, NEW DELHI VS INCOME TAX OFFICER, WARD - 2 7(4) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A HIPK1399P ASSESSEE BY : NONE REVENUE BY : SH. K. K. JAISWAL, DR DATE OF HEARING : 12 .0 4 .201 6 DATE OF PRONOUNCE MENT : 27 .04 .201 6 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 16 .12.2015 OF LD. CIT(A) - XVII , NEW DELHI . 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHA LF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. WE, THEREFORE, PROCEEDED EX - PARTE QUA THE ASSESSEE AND THE APPEAL HAS BEEN DECIDED ON MERIT AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR. 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) - XI, DELHI ERRED IN ITA NO . 104 0 /DE L/2016 ASHWANI KHANNA 2 CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN IMPOSING THE PENALTY AMOUNTING TO RS.94,000/ - U/S 271(1)(C) OF THE I.T. ACT, 1961. 2. THAT THE LD. CIT(A) HAS PASS ED THE IMPUGNED ORDER WITHOUT GRANTING PROPER OPPORTUNITY TO THE APPELLANT OR THEIR COUNSEL IN PRESENTING THE APPEAL. THE ORDER FRAMED IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND IS REQUIRED TO BE SET ASIDE/ANNULLED. 3. THAT THE ORDER PASSED BY T HE HON BLE COMMISSIONER OF INCOME - TAX (APPEALS) IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND IS BAD IN LAW. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMENDMENTS AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TI ME OF HEARING OF THE APPEAL. 3. FROM THE GROUND NO. 2, IT IS CLEAR THAT MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE PROPER OPPORTUNITY NOT GRANTED BY THE LD. CIT(A) WHILE DECIDING THE APPEAL. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE PROCEEDINGS IN THIS CASE WERE INITIATED U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) , ON THE BASIS THAT THE ASSESSEE HAD RECEIVED ACCOMMODATION ENTRIES AMOUNTING TO RS.1,50,000/ - FROM SH. HARISH KUMAR AGARWAL AND RS. 2,00,000/ - FROM SH. VISHAL AGARWAL ON 29.01.2004. THE ITA NO . 104 0 /DE L/2016 ASHWANI KHANNA 3 AO FRAMED THE ASSESSMENT BY MAKING THE ADDITIONS OF THE AFORESAID AMOUNT. HE ALSO ADDED RS.50,000/ - TO THE INCOME OF THE ASSESSEE WHICH IS THE MINIMUM LIMIT FOR FILING THE RETURN OF INCOME . ACCORDINGLY, INCOME WAS ASSESSED AT RS. 4,00,000/ - . THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE A CT AND PENALTY OF RS.94,000/ - WAS LEVIED. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE EX - PARTE BY OBSERVING THAT NOBOD Y ATTENDED NOR ANY WRITTEN REPLY WAS FURNISHED IN LIEU OF THE NOTICES ISSUED. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. DR DEFENDED THE ORDER PASSED BY THE LD. CIT(A). 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE LD. CIT(A) ALTHOUGH MENTIONED THAT NOTICE S OF HEARING WERE ISSUED TO THE ASSESSEE BUT NOWHERE IT IS STATED THAT THE SAID NOTICES WERE SERVED UPON THE ASSESSEE. THE PRINCIPLE OF NATURAL JUSTICE DEMAND S THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE ITA NO . 104 0 /DE L/2016 ASHWANI KHANNA 4 TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE . 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 27 /04 / 2016 ) SD/ - SD/ - ( KULDIP SINGH ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 /04 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR