M/s Rexall Estate Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 1248/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4085 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 12-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: ANIL KUMAR GROVER
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI DELHI BENCH F : NEW DELHI DELHI BENCH F : NEW DELHI DELHI BENCH F : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND SHRI A.D.JAIN, JUDICIAL MEMBER AND SHRI A.D.JAIN, JUDICIAL MEMBER AND SHRI A.D.JAIN, JUDICIAL MEMBER AND SHRI A.D.JAIN, JUDICIAL MEMBER ITA NO.1248/DEL/2011 ITA NO.1248/DEL/2011 ITA NO.1248/DEL/2011 ITA NO.1248/DEL/2011 ASSESSMENT YEAR : 2006 ASSESSMENT YEAR : 2006 ASSESSMENT YEAR : 2006 ASSESSMENT YEAR : 2006- -- -07 0707 07 M/S REXALL ESTATE PVT.LTD., M/S REXALL ESTATE PVT.LTD., M/S REXALL ESTATE PVT.LTD., M/S REXALL ESTATE PVT.LTD., N NN N- -- -140, GREATER KAILASH 140, GREATER KAILASH 140, GREATER KAILASH 140, GREATER KAILASH- -- -I, I,I, I, N NN NEW DELHI EW DELHI EW DELHI EW DELHI 110 048. 110 048. 110 048. 110 048. PAN NO.AADCR1395K. PAN NO.AADCR1395K. PAN NO.AADCR1395K. PAN NO.AADCR1395K. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -15(3), 15(3), 15(3), 15(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL KUMAR GROVER, AR. RESPONDENT BY : SMT.ANUSHA KHURANA, SR.DR. ORDER ORDER ORDER ORDER PER G.E.VEERABHADRAPPA, VP : PER G.E.VEERABHADRAPPA, VP : PER G.E.VEERABHADRAPPA, VP : PER G.E.VEERABHADRAPPA, VP : THIS IS ASSESSEES APPEAL FOR AY 2006-07, TAKING TH E FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A)-XVIII HAS ERRED, BOTH ON FACTS AND IN LA W, IN REFUSING/FAILING TO CONSIDER THE FACTS THAT ONE OF THE DIRECTOR OF THE COMPANY WAS NOT WELL AT ALL. IN TH E CIRCUMSTANCES NO BUSINESS WAS DONE DURING THAT PERI OD AND THE APPEAL PROCEEDINGS WERE NOT TAKEN UP BY THE ASSESSEE COMPANY. 2. THAT THE ASSESSEES COMPANY RECORDS, DOCUMENTS, SUBMISSIONS, CONFIRMATION AND PLEAS OF THE APPELLAN T IN RESPECT OF ALL THE GROUNDS AND REJECTED THE SAME MECHANICALLY WITHOUT PROVIDING THE OPPORTUNITY OF BEING HEARD ONLY ON THE PRETEXT OF THE SAME NOT HAVING B EEN PLACED BEFORE THE ITO AND THE IMPUGNED ORDER PASSED BY THE CIT(A) IS THEREFORE, ILLEGAL AND UNSUSTAINABLE AND HENCE LIABLE TO BE SET ASIDE AND QUASHED. 3. THE FIRST APPELLATE AUTHORITY IS DUTY BOUND TO CONSIDER ALL THE FACTUAL AND LEGAL SUBMISSIONS, REC ORDS, DOCUMENTS AND PLEAS PLACED BY THE APPELLANT AS THE APPEAL IS THE CONTINUATION OF ORIGINAL PROCEEDINGS IN ASSESSMENT AND THE CIT(A) OUGHT TO HAVE DONE WHATEV ER ITA-1248/DEL/2011 2 THE ITO SHOULD HAVE DONE, CORRECTLY, BOTH ON FACTS AND IN LAW, AS THE POWERS ARE CO-EXTENSIVE AND CO-TERMINUS AND FAILURE TO DO SO HAS VITIATED THE IMPUGNED ORDER WH ICH IS LIABLE TO BE SET ASIDE. 4. THE AUTHORITIES BELOW HAVE ERRED BOTH ON FACTS A ND IN LAW, IN CONFIRMING ILLEGAL ADDITIONS OF RS.1317,300 /- ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S 68 WITHOUT GIVING THE CONCERNED AUTHORITY OPPORTUNITY OF BEING HEARD AND HENCE THE IMPUGNED ILLEGAL ADDITIONS MUST BE DELETE D AND DECLARED TO BE UNSUSTAINABLE, BOTH ON FACTS AND IN LAW. 2. THE IMPUGNED ORDER WAS PASSED BY LEARNED CIT(A) EX-PARTE QUA THE ASSESSEE, OBSERVING, INTER-ALIA, AS FOLLOWS:- 2. NOTICES U/S 250 DATED 22.07.2009, 18.09.2009 & 09.10.2009 WERE ISSUED FIXING THE CASE FOR HEARING ON 18.08.2009, 24.09.2009 & 29.10.2009 RESPECTIVELY. THE NOTICES WERE SENT AT THE APPELLANTS ADDRESS AT N 1 40, GREATER KAILASH-I, NEW DELHI 110048 AS PER THE APPELLANTS ADDRESS ON RECORD BY SPEED-POST. ALL N OTICES WERE COME BACK WITH THE REMARKS NO FIRM OF THIS COMPANY. NEEDLESS TO SAY, NOBODY APPEARED ON THE ABOVE DATES FOR THE HEARINGS. HOWEVER, AFTER THE A NOINTED DATES, AS PER RECORD ONE MR.K.P.SINGH HAS FILED A P OWER OF ATTORNEY AND AN AFFIDAVIT PURPORTEDLY FROM MR.V.K.S HARMA, DIRECTOR OF THE ASSESSEE COMPANY REQUESTING THAT HI S RESIDENTIAL ADDRESS AT SARVAPRIYA VIHAR, NEW DELHI BE USED FOR CORRESPONDENCE INSTEAD OF THE REGISTERED ADDRES S OF THE COMPANY AT N 140, GREATER KAILASH-I, NEW DELHI. TH E CASE WAS ACCORDINGLY, FIXED FOR HEARING ON 25.11.2009 BY ISSUE OF NOTICE DATED 06.11.2009. HOWEVER, THE ASSESSEE COMPANY FILED AN ADJOURNMENT APPLICATION DATED 25.11.2009 SAYING THAT THEY ARE BUSY FOR TIME BARRI NG ASSESSMENTS WITH THE INCOME TAX DEPARTMENT AND REQUESTING FOR ADJOURNMENT OF THE CASE TO LAST WEEK OF DECEMBER 2009. THE CASE WAS, ACCORDINGLY, FIXED ON 23.12.2009. HOWEVER, AGAIN THE APPELLANT COMPANY F ILED ANOTHER APPLICATION SEEKING ADJOURNMENT. THE CASE WAS, ACCORDINGLY, FIXED ON 12.01.2010. HOWEVER, AGAIN O N THE ABOVE DATE THE APPELLANT FILED AN ADJOURNMENT APPLI CATION SEEKING ADJOURNMENT UPTO SECOND WEEK OF FEBRUARY 20 10. THE CASE WAS, ACCORDINGLY, AGAIN FIXED ON 17.02.201 0. HOWEVER, ON THAT DAY ALSO NOBODY APPEARED AND NO SUBMISSIONS WERE FILED. NO ADJOURNMENT PETITION WA S ALSO FILED ON THE ABOVE DAY OR ANY TIME THEREAFTER. IN VIEW OF ITA-1248/DEL/2011 3 THE ABOVE, IT IS CLEAR THAT THE APPELLANT IS NOT IN TERESTED IN PURSUING THE APPEAL AND IS ONLY TRYING TO DELAY THE PROCEEDINGS BY INITIALLY NOT APPEARING AND THEREAFT ER ONLY FILING ADJOURNMENT APPLICATIONS. THE ABOVE ACTION OF THE APPELLANT IN SEEKING ADJOURNMENTS REPEATEDLY AND NO T APPEARING IS PREJUDICIAL TO THE FUNCTIONING OF THE GOVERNMENT AUTHORITIES AS IT NOT ONLY DELAYS THE COMPLETION OF VARIOUS PROCEEDINGS BUT ALSO CAUSES AVOIDABLE WASTE OF TIME AND ENERGY OF GOVERNMENT DEPARTMENT IN HANDLING THESE MATTERS. I ALSO FIND THAT THE APPELLANT HAS NOT COMPLETED WITH THE ASSESSMENT PROCEEDING BY NOT APPEARING WHICH IS EVIDENT FROM T HE ASSESSMENT ORDER. CONSIDERING THE SAME, THE APPEAL FILED CANNOT BE PROCEEDED WITH AND THE SAME IS, THEREFORE , DISMISSED. 3. A PERUSAL OF THE ABOVE SHOWS THAT THOUGH THE ASS ESSEE WAS PROCEEDED EX-PARTE, THE LEARNED CIT(A) HAS NOT DECI DED THE MATTER ON MERITS. 4. ACCORDINGLY, THE MATTER IS REMITTED TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED ON MERITS IN ACCORDANCE WITH L AW. IN THE INTEREST OF JUSTICE, THE ASSESSEE SHALL ALSO BE PROVIDED AN OPPORTUNITY OF HEARING. THE ASSESSEE, NO DOUBT, SHALL COOPERATE W ITH THE LEARNED CIT(A). 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 12 TH MAY, 2011. SD/- SD/- (A.D.JAIN) (A.D.JAIN) (A.D.JAIN) (A.D.JAIN) (G.E.VEERA (G.E.VEERA (G.E.VEERA (G.E.VEERABHADRAPPA) BHADRAPPA) BHADRAPPA) BHADRAPPA) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 12.05.2011. VK. ITA-1248/DEL/2011 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR