Sh. Deepak Bansal, New Delhi V. ITO, New Delhi

ITA 1180/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91303 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 06-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 03-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Keywords: Reassessment proceedings
• Section: 142(1); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -I, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1180 /DEL./2014 : ASSTT. YEAR : 2003-04 DEEPAK BANSAL 28/78, PUNJABI BAGH NEW DELHI VS ITO WARD- 25(1) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AFXPB6400M ITA NO. 1181/DEL./2014 : ASST T. YEAR : 2003-04 VIJAY BANSAL 28/78, PUNJABI BAGH NEW DELHI VS ITO WARD- 25(1) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. ABMPK7772Q APPELLANT BY : SH. SURE SH KUMAR GUPTA, C.A. RESPONDENT BY : SH. BHIM SIN GH, SR. DR DATE OF HEARING : 6.07.2015 DATE OF PRONOUNCEMENT : 6.07.2015 ORDER PER N.K. SAINI, A.M. THESE TWO APPEALS BY THE ASSESSEES ARE DIRECTED AGA INST THE SEPARATE ORDERS DATED 14.012.2012 IN THE CASE OF SH RI DEEPAK BANSAL AND DATED 30.03.2013 IN THE CASE OF SHRI VIJAY BANS AL PASSED BY THE LD. CIT(A) XXIV, NEW DELHI. ITA NO.1180 & 1181/DEL/2014 2 2. SIMILAR GROUNDS HAVE BEEN RAISED IN THESE APPE ALS AND THE FACTS ARE IDENTICAL SO THESE ARE BEING DISP OSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND B REVITY. 3. FIRST I WILL DEAL WITH THE APPEAL IN ITA NO. 1180.DEL.2014. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- 1. THE LD. CIT(A) HAS ERRED IN PASSING THE ORDER OF APPEAL WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO PRESENT HIS CASE AND ALSO THAT THE NOT ICE OF HEARING HAS NOT BEEN SERVED UPON THE APPELLANT D UE TO SHIFTING OF PREMISES BY THE APPELLANT AS IS NOTE D IN PARA 4.2 OF THE ORDER OF LD. CIT(A) PASSED IN THE C ASE OF THE FATHER OF THE APPELLANT SH. VIJAY BANSAL. 2. THE INITIATION OF REASSESSMENT PROCEEDINGS IS CHALLENGED ON ACCOUNT OF NON APPLICATION OF MIND BY THE AO AND ALSO THAT THE SAID AO HAD NO JURISDICTIO N OVER THE APPELLANT AT THE REVEVANT TIME. 3. THE AUTHORITIES BELOW HAVE ERRED BOTH IN LAW AND ON FACTS IN MAKING THE ADDITIONS OF RS. 3,51,000/- IGNORING THE MATERIAL PLACED ON RECORD AND WITHOUT FINDING ANY DEFECT IN THE MATERIAL PRODUCED. 4. FROM THE ABOVE GROUNDS IT WOULD BE CLEAR THAT TH E GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE EX PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING OPPORTUNITY OF BE ING HEARD. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE AO AFT ER RECORDING THE REASONS, ISSUED A NOTICE DATED 26.3.2010 TO THE ASS ESSEE U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). THE ASSESSEE DID NOT FURNISH ANY RETURN IN RESPONSE TO THE SAID NOTICE. ITA NO.1180 & 1181/DEL/2014 3 THEREAFTER THE AO ISSUED NOTICES U/S 142(1) DATED 2 5.06.2010 AND 30.09.2010, IN RESPONSE THE ASSESSEE FILED A LETTER DATED 23.09.2010 STATING THEREIN THAT THE INCOME TAX RETURN HAD ALRE ADY BEEN FILED COPY OF THE SAID RETURN WAS ENCLOSED ALONGWITH THE SAID LETTER. THE AO, HOWEVER, FRAMED THE ASSESSMENT AT AN INCOME OF RS. 4,82,690/- BY MAKING THE ADDITIONS OF RS. 3,00,000/- & RS. 36 ,000 U/S 68 OF THE ACT AND RS. 15,000/- U/S 69 C OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DECIDED THE APPEAL EX PARTE BY STATING T HAT THE ASSESSEE HAD CHOSEN NOT TO APPEAR OR TO FILE ANY WRITTEN SUB MISSIONS. HE CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING THAT THE AO WAS JUSTIFIED IN MAKING THE ADDITIONS AND THE ASSES SEE HAD NOTHING TO SAY IN HIS DEFENCE. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE OF HEARING HAD BEEN SERVED UPON THE ASSESSEE DUE TO SH IFTING OF PREMISES. IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD DISMISSED THE APPEAL OF THE ASSESSEE. HE REQUESTED TO RESTORE THE CASE BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION O N MERIT. IN HIS RIVAL SUBMISSIONS. THE LD. DR STRONGLY SUPPORTED THE ORDE R OF THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE AND DID NOT APPEAR BEFORE THE LD. CIT(A). SO, THERE WAS NO OTHER ALTERNATIVE EXCEPT TO DECIDE THE APPEAL OF THE ASSE SSEE EX PARTE. ITA NO.1180 & 1181/DEL/2014 4 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT APPEARS THAT THE NOTICE OF HEARING COULD NOT BE SER VED UPON THE ASSESSEE DUE TO SHIFTING OF PREMISES. LD. CIT(A) AL SO ADMITTED THIS FACT IN PARA 4.2 OF THE IMPUGNED ORDER. IT IS ALSO NOTICED THAT THE LD. CIT(A) HAD NOT DECIDED THE APPEAL OF THE ASSESSEE O N MERIT, HE SIMPLY CONFIRMED THE ADDITION MADE BY THE AO BY STA TING THAT THE ASSESSEE HAD NOTHING TO SAY IN HIS DEFENCE. IT IS W ELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PERTAM. 8. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE NOTICE OF HEARING WAS NOT SERVED UPON THE ASSESSEE AND THE AP PEAL WAS DECIDED BY THE LD. CIT(A) EX PARTE. I, THEREFORE, DEEM IT A PPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND THE CASE IS REMANDED B ACK TO THE FILE OF LD. CIT(A) TO BE DECIDED AFRESH, INACCORDANCE WITH THE LAW, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. I, ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS. 9. IN ITA NO. 1181.DEL.2014 RELATING TO SH. VIJAY BANSAL, THE GROUNDS RAISED ARE SIMILAR AS WERE IN THE CASE OF S H. DEEPAK BANSAL, THE ONLY DIFFERENCE IS IN THE AMOUNT INVOLV ED. THEREFORE, MY FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS TO THE CASE OF SHRI VIJAY BANSAL ALSO. ITA NO.1180 & 1181/DEL/2014 5 IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 06/07/2015). (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 06 / 07/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.1180 & 1181/DEL/2014 6 DATE INITIAL 1. DRAFT DICTATED ON 6.07.2015 2. DRAFT PLACED BEFORE AUTHOR 6.07.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.