Diamond Buiders (P) Ltd., Delhi V. ITO, New Delhi

ITA 1275/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0066 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-03-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 22-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVI RAMA CHANDARAN
• Keywords: Opportunity of being heard; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH B DELHI ] BEFORE SHRI R. P. TOLANI, JM AND SHRI K. D. RANJAN, AM I. T. APPEAL NO. 1275 (DEL) OF 2010 ASSESSMENT YEAR : 2001-02. M/S. DIAMOND BUILDERS PVT. LTD., THE INCOME-TAX OFF ICER, 1/26, GALI NO. 13, VISHWAS NAGAR, VS. W A R D : 10 (3), SHAHDARA, D E L H I 110 032. N E W D E L H I. P A N / G I R NO. AAA CD 6491 R. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI ANIL GARG, C. A.; DEPARTMENT BY : SHRI K. RAVI RAMA CHANDARAN, SR. D.R.; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 20 01-02 ARISES OUT OF THE ORDER OF THE LD. CIT (APPEALS)-XIII, NEW DELHI. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER :- 1 (A). THAT THE HONBLE CIT (APPEALS) ERR ED IN DISMISSING THE APPEAL ON THE ALLEGED GROUND THAT TWO NOTICES DATED 20/11/2009 AN D 18/12/2009 WERE ISSUED BUT THERE WAS NO COMPLIANCE; 1 (B). THAT THE ORDER UNDER APPEAL WAS DULY SERVED AND IT IS A MATTER OF INVESTIGATION THAT WHETHER TWO NOTICES DATED 20/11/ 2009 AND 18/12/2009 WERE REALLY ISSUED AND SERVED UPON THE APPELLANT; 2 I. T. APPEAL NO. 1275 (DEL) OF 2010 2. THAT THE ASSESSING OFFICER WAS GIVEN AN E XPLANATION DATED 27/11/2008 (COPY OF WHICH IS ENCLOSED), BUT THE SAME IS NOT ME NTIONED IN ASSESSMENT ORDER; THE SAME WAS FILED ALONG WITH THE APPEAL PAPERS AND IN THE FACTS OF THE CASE IT IS MENTIONED THAT FOR THE HEARING ON 28/11/2008 A REPL Y DATED 27/11/2008 WAS FILED BEFORE THE ASSESSING OFFICER BUT THE SAME IS NOT DI SCUSSED EITHER BY THE ASSESSING OFFICER OR BY THE HONBLE CIT (APPEALS); 3. THAT IF THE REPLY DATED 27/11/2008 SUBMIT TED BEFORE THE ASSESSING OFFICER WAS AVAILABLE TO HONBLE CIT (APPEALS) TO ASK THE A SSESSING OFFICER TO GIVE COMMENTS ON THE EXPLANATION DATED 27/11/2008 WHICH IS SPECIFICALLY MENTIONED IN GROUND NO. 2 BEFORE HONBLE CIT (APPEALS); 4. THE ORDER PASSED BY THE ASSESSING OFFICER AND HONBLE CIT (APPEALS) ARE BAD IN FACTS AND IN LAW AND FAILURE TO DEAL GIVE TH E EXPLANATION DATED 27/11/2008 FILED BEFORE THE ASSESSING OFFICER ALSO MENTIONED I N THE STATEMENT OF FACTS AND GROUNDS OF APPEAL 2 VITIATES THE ORDERS BOTH OF THE ASSESSING OFFICER AND THE HONBLE CIT (APPEALS). 3. THE ONLY ISSUE FOR OUR CONSIDERATION RELATES TO DISMISSING THE APPEAL WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. THE FACTS O F THE CASE STATED IN BRIEF ARE THAT THE ASSESSING OFFICER WHILE COMPLETING ASSESSMENT UNDER SECTION 1 43(3) OF THE ACT FOUND THAT THE ASSESSEE HAD RECEIVED SHARE APPLICATION MONEY OF RS.10,00,000/- FROM M/S. PERFORMANCE TRADING AND INVESTMENT COMPANY. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS THE ASSESSEE WAS ASKED TO PRODUCE THE PARTY FOR EXAMINATION AND TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTIONS. THE ASSESSEE WAS ALSO ASKED TO FILE AFFIDAVIT CONFIRMING THE TRANSACTION WITH THE ASSESSEE AND ALL OTHER DOCUMENTS PROVIDING THE PRIM ARY FACTS TO PROVE THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE ASSESSEE D ID NOT FILE ANY INFORMATION AND, THEREFORE, THE ASSESSING OFFICER TREATED THE AMOUNT OF RS.10,0 0,000/- AS UNDISCLOSED INCOME UNDER SECTION 68 OF THE ACT. 4. ON APPEAL THE LD. CIT (APPEALS) PROVIDED OPPORTU NITY TO THE ASSESSEE BY FIXING THE CASE FOR HEARING ON 8/12/2009 AND 6/01/2010. BUT BOTH T HE NOTICES REMAINED UN-COMPLIED WITH. SINCE THE ASSESSEE DID NOT APPEAR NOR ANY SUBMISSIO NS WERE MADE TO SUBSTANTIATE ITS CLAIM, THE LD. CIT (A) CONCLUDED THAT THE ASSESSEE HAD NOTHING TO SAY IN THE MATTER. HE ACCORDINGLY UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. 3 I. T. APPEAL NO. 1275 (DEL) OF 2010 5. BEFORE US THE LD. AR OF THE ASSESSEE SUBMITTED T HAT PROPER OPPORTUNITY WAS NOT PROVIDED. IT WAS SUBMITTED THAT THE SAID NOTICES W ERE NOT SERVED UPON THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE LD. CIT (A) HAS DECID ED THE APPEAL WITHOUT AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. ON THE OT HER HAND, THE LD. SR. DR SUPPORTED THE ORDER OF THE LD. CIT (APPEALS). 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ABOVE FACTS IT IS EVIDENT THAT THE LD. CIT (A) HAS ISSUED NOTICE TO THE ASSESSEE ON TWO OCCASIONS. ACCORDING TO THE ASSESSEE THE SAID NOTI CES WERE NOT SERVED. IN VIEW OF THESE FACTS, WE ARE OF THE OPINION THAT SUFFICIENT TIME HAS NOT BEE N PROVIDED TO THE ASSESSEE BY THE LD. CIT (A). WE, THEREFORE, SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT (A) WITH THE DIRECTIONS TO PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AN D PASS A SPEAKING ORDER ON MERITS, AFTER PROVIDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED, FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 25 TH MARCH, 2011. SD/- SD/- [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : _25 TH MARCH, 2011 . *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 4 I. T. APPEAL NO. 1275 (DEL) OF 2010 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.