M/s. SPG Finvest Private Ltd., New Delhi V. ACIT, New Delhi

ITA 1091/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7320 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI O.P. KANT ITA NO. 1091 /DEL/201 3 ASSESSMENT YEAR: 200 9 - 1 0 SPG FINVEST PRIVATE LTD., VS. ACIT, H - 108, IIND FLOOR, NEW ASIATIC BLDG., CENTRAL CIRCLE - 9, CONNAUGHT PLACE, NEW DELHI. NEW DELHI. ( PAN: AA B C S3943P ) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI VED JAIN, A DV. DEPARTM ENT BY: SMT. ANIMA BARNWAL, S R. DR DATE OF HEARING : 21 . 0 3 .201 6 DATE OF PRONOUNCEMENT: 14 : 0 6 .201 6 ORDER PER I.C. SUDHIR : JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(APPEALS) - XXXII, WAS INCORRECT AND UNJUSTIFIED IN ACCEPTING THE ASSESSMENT OF THE ASSESSEE AT INCOME OF RS.50,99,610 AS AGAINST RETURNED LOSS OF RS.69,357; 2. ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE AND IN LAW, LEARNED CIT(APPEALS) - XXXII WAS INCORRECT AND UNJUSTIFIED TO ACCEPT THE APPROACH OF ASSESSING THE ASSESSEE WHICH IS AGAINST THE PRINCIPLES CONSISTENCY. 2 2 . AT THE OUTSET OF HEARING, THE LEARNED AR POINTED OUT THAT THE LE ARNED CIT(A) WAS NOT JUSTIFIED IN PASSING THE ORDER EX PARTE. ATTENTION WAS INVITED TO THE ORDER OF THE LEARNED CIT(A) WHEREBY THE ASSESSEE SOUGHT ADJOURNMENTS FROM TIME TO TIME. IT WAS SUBMITTED THAT THE CASE WAS FIXED ON 6 TH SEPTEMBER, 2012 AND THE SAM E WAS ADJOURNED SINE DIE ON THAT DAY ON THE REQUEST OF THE ASSESSEE. THE LEARNED CIT(A) THEREAFTER HAS STATED TO HAVE ISSUED A NOTICE ON 15 TH OCTOBER, 2012FIXING THE HEARING ON 6 TH NOVEMBER, 2012. ON THAT DAY THE REPRESENTATIVE WENT TO THE OFFICE OF THE LEARNED CIT(A) AND THE MATTER WAS NOT TAKEN UP AND IT WAS INFORMED THAT THE NEW NOTICE WILL BE ISSUED SINCE THE MATTER WAS ADJOURNED SINE DIE AT THE TIME OF THE LAST HEARING. 2.1 THEREAFTER THE LEARNED CIT(A) PASSED THE ORDER BY MAKING AN OBSERVATION THA T NOBODY HAS APPEARED AND ATTENDED THE PROCEEDINGS. IT WAS CONTENDED THAT THE ASSESSEE HAS ALL ALONG BEEN SERIOUS IN PROCEEDING WITH THE APPEAL AS IS EVIDENT FROM THE APPEARANCE BEFORE THE LEARNED CIT(A) AS STATED IN THE ORDER ITSELF. 2.2 IT WAS FURTHE R STATED THAT THE LEARNED CIT(A) HAS CONFIRMED DISALLOWANCE WITHOUT GIVING ANY FINDING ON MERIT AS IS EVIDENT FROM PARA 10 WHERE THE LEARNED CIT(A) HAS STATED THAT THE GROUNDS NO. 1 TO 5 ARE GENERAL 3 IN NATURE ON WHICH NO SPECIFIC SUBMISSIONS HAVE BEEN MADE BY THE APPELLANT AND HENCE NO ADJUDICATION IS REQUIRED THEREON. IT WAS CONTENDED THAT THE LEARNED CIT(A) HAS TO RECORD A FINDING ON MERIT ON EACH OF THE ISSUE. IN THE ABSENCE OF APPEAL BEING DECIDED BY THE LEARNED CIT(A) ON MERIT, THE ORDER PASSED BY TH E LEARNED CIT(A) IS BAD AND LIABLE TO BE SET ASIDED. RELIANCE WAS PLACED ON THE FOLLOWING JUDGMENTS: - GAURAVGOEL, VS. ITO, WARD 1(2) (ITA NO.605/DEL./2012 DATED 09 - 04 2012, ITAT DELHI) M/S HARYANA LIQUOR COMPANY. VS ACIT (ITA NO.1852/DEL/2012 DATED 25 JU NE 2012, ITAT DELHI) 3. THE LEARNED DR SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(A). 4. HAVING GONE THROUGH THE ORDER PASSED BY THE LEARNED CIT(A), WE FIND THAT FIRST APPELLATE ORDER HAS BEEN PASSED EX PARTE FOR NON - APPEARANCE OF THE ASSESSEE ON TH E DATE FIXED FOR HEARING. THE LEARNED CIT(APPEALS) HAS JUSTIFIED THESE ACTIONS FOR PROCEEDINGS EX PARTE IN VIEW OF THE DECISIONS INCLUDING THE DECISION OF HON'BLE DELHI BENCH OF THE ITAT IN THE CASE OF MULTIPLAN INDIA 38 ITD 320 ( DEL. ) THAT THE ASSESS EE IS NOT INTERESTED IN PURSUING THE APPEAL. THE MAIN ISSUE INVOLVED IN THIS APPEAL IS REGARDING SHARE APPLICATION MONEY WHEREBY THE AO HAS MADE THE ADDITION ON THE 4 GROUND THAT ASSESSEE HAS ACCEPTED THIS ADDITION. AS AGAINST THIS THE CONTENTION OF THE LEA RNED AR WAS THAT THIS FACT HAS BEEN WRONGLY RECORDED AND ASSESSEE HAS AT NO POINT OF TIME AGREED FOR THIS ADDITION. TAKING INTO CONSIDERATION THESE ASPECTS WE DEEM IT APPROPRIATE TO SET ASIDE THE ORDER TO THE FILE OF THE AO. WE ORDER ACCORDINGLY WITH THI S DIRECTION THAT THE ASSESSING OFFICER WILL DECIDE THE ISSUE RAISED IN THE ABOVE GROUNDS OF THE PRESENT APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 . 0 6 . 201 6 SD/ - SD/ - ( O.P . K A NT ) ( I.C. S UDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14 / 0 6 /201 6 MOHAN LAL COPY FORWARDED TO: 1) A PPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 5 DATE DRAFT DICTATED DIRECTLY ON COMPUTER 14 . 0 6 .201 6 DRAFT PLACED BEFORE AUTHOR 14 . 0 6 .2016 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 14 .06 .2016 APPROVED DRAFT COMES TO THE SR.PS/PS 14 . 0 6 .2016 KEPT FOR PRONOUNCEMENT ON 14 .0 6 .2016 FILE SENT TO THE BENCH CLERK 15 . 0 6 .2016 DATE ON WHICH FILE G OES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.