Shyam Sunder Maheswari, Delhi V. ITO, New Delhi

ITA 1083/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5793 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 24-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K TEWARI
• Assessee Lawyers: V RAJ KUMAR
• Keywords: Opportunity of being heard
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 1083/DEL/2015 ASSESSMENT YEAR: 2008-09 SHYAM SUNDER MAHESHWARI, VS. ITO, WARD-50(4), 4664-65, MAHABIR BAZAR, NEW DELHI CLOTH MARKET, DELHI 11 0006 (PAN: AAAHS5580D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V. RAJKUMAR, ADV. REVENUE BY : SH. K. TEWARI, SR. DR ORDER PER H.S. SIDHU, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 27.01.2015 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-41, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2008-09 (FY 2007-08 4 TH QUARTER). 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN : I) PASSING ORDER U/S. 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING DUE 2 AND ADEQUATE OPPORTUNITY AND WITHOUT ALLOWING CREDIT FOR TDS DEPOSITED IN THE BANK. II) PRECIPITATELY PASSING AN ORDER U/S. 250 OF THE ACT WITHOUT PROVIDING DUE AND ADEQUATE OPPORTUNITY AND FAILING TO CONSIDER THE WRITTEN SUBMISSION AS FILED IN HIS OFFICE. BOTH THE ABOVE ACTIONS BEING ARBITRARY, ERRONEOUS AND ILLEGAL, IT IS PRAYED THAT THE SAME MUST BE QUASHED WITH THE DIRECTIONS FOR APPROPRIATE RELIEF. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A SMALL PAPER BOOK CONTAINING PAGES 1 TO 10 HAVING T HE COPY OF THE NOTICE RECEIVED FROM CIT(A)-XXX FIXED THE DATE 16. 9.2013; COPY OF SUBMISSIONS FILED BEFORE CIT(A) DATED 16.9.2013 AL ONGWITH LETTER FILED BEFORE AO DATED 9.1.2013 FOR RECTIFICATION AN D COPY OF CHALLAN; COPY OF NOTICE RECEIVED FROM CIT(A)-XXX FIXED THE D ATE 21.11.2014; COPY OF SUBMISSIONS FILED BEFORE CIT(A) DATED 21.11 .2014; COPY OF CIT(A) ORDER FOR AY 2007-08; COPY OF BANK STATEMENT . HE STATED THAT ASSESSING OFFICER HAS PASSED THE ORDER U/S. 20 1(1)/201(1A) OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING DUE AND ADEQUATE OPPORTUNITY AND WITHOUT ALLOWING CREDIT FOR TDS DE POSITED IN THE BANK AND ALSO THE LD. CIT(A) PASSED AN ORDER U/S. 250 OF THE ACT WITHOUT PROVIDING DUE AND ADEQUATE OPPORTUNITY AND FAILING TO 3 CONSIDER THE WRITTEN SUBMISSION AND DISMISSED THE A PPEAL OF THE ASSESSEE ON ACCOUNT OF NON-APPEARANCE. HE DRAW OUR ATTENTION TOWARDS THE PG. 3 OF THE PB WHICH IS A LETTER DATED 9.1.2013 ADDRESSED TO AO BY THE ASSESSEE STATING THEREIN THA T A DEMAND OF RS. 1,31,850/- WAS CREATED AND THE DEMAND CONSISTS OF TAX RS. 84,050/- AND INTEREST RS. 47,800/-. THE TAX AMOUNTI NG TO RS. 84,053/- WAS DEPOSITED ON 30.5.2008 AND REQUES TED THAT ORDER U/S. 154 OF THE ACT MAY KINDLY BE PASSED AND THE DE MAND CREATED BE ADJUSTED. HE FURTHER DRAW OUR ATTENTION TOWARDS P AGE NO. 2 OF THE PB WHICH IS A LETTER DATED 12.9.2013 ADDRESSED TO L D. CIT(A), NEW DELHI BY THE ASSESSEE REITERATING THE SAME FACTS M ADE BEFORE THE AO VIDE AFORESAID LETTER DATED 9.1.2013 AND REQUESTED THE LD. CIT(A) TO DIRECT THE AO FOR GIVING REASONABLE OPPORTUNITY A ND GIVING CREDIT FOR THE TAXES DEPOSITED WHICH ARE ALL IN ORDER. HE FURTHER DRAW OUR ATTENTION TOWARDS PAGE NO. 6 OF PB WHICH IS A LETTE R DATED 20.11.2014 ADDRESSED TO THE LD. CIT(A) BY THE ASSES SEE STATING THEREIN THAT THE ENTIRE DEMAND HAS BEEN DEPOSITED A ND THE PHOTOCOPY OF THE CHALLANS HAD BEEN FILED ALONGWITH LETTER DATED 21.1.2013 FOR ENABLING THE AO TO GIVE DUE CREDIT FO R THE TAXES DEPOSITED. IN VIEW OF THE ABOVE, HE REQUESTED THE BENCH TO SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO HIM TO GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXP LAIN AND SATISFY THE AO FOR SUBSTANTIATING HIS CLAIM. 4 5. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT ASSESSEE REMAIN N ON-COOPERATIVE BEFORE THE LD. CIT(A), HENCE, THE LD. CIT(A) HAS RI GHTLY DISMISSED THE APPEAL OF THE ASSESSEE, WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE ASSESSING OFFICER HAS PASSED THE ORDER U/S . 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING DUE AND ADEQUATE OPPORTUNITY AND WITHOUT ALLOWING CREDIT FOR TDS DE POSITED IN THE BANK AND ALSO THE LD. CIT(A) PASSED AN ORDER U/S. 250 OF THE ACT WITHOUT PROVIDING DUE AND ADEQUATE OPPORTUNITY AND FAILING TO CONSIDER THE WRITTEN SUBMISSION AND DISMISSED THE A PPEAL OF THE ASSESSEE ON ACCOUNT OF NON-APPEARANCE, WHICH IS NO T SUSTAINABLE IN THE EYES OF LAW. AFTER PERUSING THE PHOTOCOPY OF T HE CHALLAN, WE NOTE THAT A DEMAND OF RS. 1,31,850/- WAS CREATED A ND THE DEMAND CONSISTS OF TAX RS. 84,050/- AND INTEREST RS. 47,80 0/- AND THE TAX AMOUNTING TO RS. 84,053/- WAS DEPOSITED ON 30.5.20 08 VIDE TAXPAYER COUNTERFOIL RECEIPT DATED 30.5.2018 DEPOSI TED IN THE CANARA BANK, BALLIMARAM BRANCH, CHANDNI CHOWK, DELH I. BUT THE AO DID NOT GIVE ANY OPPORTUNITY TO THE ASSESSEE TO EXP LAIN AND SATISFY HIM FOR SUBSTANTIATING THE CLAIM AND ENABLING THE A O GIVE DUE CREDIT FOR THE TAXES DEPOSITED, IN ACCORDANCE WITH LAW. 5 6.1 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT ASSESSEE REMAIN NON-COOPERATIVE BEFORE T HE LD. CIT(A), BUT IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSI DERED VIEW THAT THE ISSUE IN DISPUTE NEEDS TO BE SET ASIDE TO THE AO WITH THE DIRECTIONS TO GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND GIVE DUE CREDIT FOR THE TAXES DEPOSITED, IN ACCORDANCE W ITH LAW. WE HOLD AND DIRECT ACCORDINGLY. HOWEVER, THE ASSESSEE IS DI RECTED THROUGH HIS COUNSEL TO APPEAR BEFORE THE ASSESSING OFFICER ON 31.07.2018 AT 10.00 AM TO SUBSTANTIATE HIS CLAIM BEFORE THE AO AND PRODU CE ALL THE NECESSARY DOCUMENTS/ EVIDENCES, IF ANY AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28-06-2018. SD/- SD/- (N.K. BILLAIYA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28-06-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.