R M FINANCIAL SERVICES PVT. LTD., NEW DELHI V. ITO, WARD- 20(3), NEW DELHI

ITA 13/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8888 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S.SAINI, ACCOUNTANT M EMBER ITA NO.-13/DEL/2018 (ASSESSMENT YEAR: 2013-14) R M FINANCIA SERVICES PVT. LTD. B-45, SATYAWATI COLONY, ASHOK VIHAR, PHASE-3, DELHI 110052 PAN : AAACR4407R VS ITO, WARD-20(3), NEW DELHI ASSESSEE BY NONE REVENUE BY SHRI S.L.ANURAGI, SR. DR ORDER PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-25, NEW DELHI DATED 29.09.2017 FOR ASSESSMENT YEAR 2013-14. THE ASSESSE D HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LD. CIT(A) U/S. 250 OF THE ACT IS BAD BOTH IN EYES OF LAW AND IN FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE O RDER PASSED BY THE LD. CIT(A) HAS ERRED IN GIVING AN OPP ORTUNITY OF BEING HEARD. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE ASS ESSING OFFICER IN MAKING ASSESSMENT OF RS. 8,20,500/- BY DISALLOWING A LOSS OF RS. 4,22,811/- AS AGAINST NI L INCOME DECLARED BY THE APPELLANT. 4. THE LD. CIT(A) HAS NOT CONSIDERED THE FACTS THA T THE OBSERVATION MADE BY THE LD. AO IS GENERAL IN NATURE AND NOT BACKED BY ANY EVIDENCE IN THAT REGARD. DATE OF HEARING 27.12.2018 DATE OF PRONOUNCEMENT 27.12.2018 2 ITA N O. 13/DEL/2018 2. IN GROUND NO. 2 OF THE APPEAL - THE GRIEVANCE O F THE ASSESSEE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT GIVING PROPER OPPORTUNITY OF HEARING BEFORE DISPOSI NG OF THE APPEAL OF THE ASSESSEE. 3. NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON 27 .09.2018 FOR FIXING THE HEARING OF THE APPEAL ON 27.12.2018. NON APPEARED WHEN THE CASE WAS CALLED FOR HEARING AND NEITHER ANY APP LICATION FOR ADJOURNMENT OF HEARING IS FILED. THE BENCH WAS OF T HE VIEW THAT THE APPEAL OF THE ASSESSEE CAN BE DISPOSED OF IN ABSENC E OF THE ASSESSEE. HENCE, THE BENCH PROCEEDED TO HEAR THE LD . DEPARTMENTAL REPRESENTATIVE, SHRI S.L.ANURAGI, SR. DR AND DISPOSE OF THE APPEAL. 4. THE FACTS OF THE CASE ARE THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS OBSERVED IN HIS ORDER AT PAGE 4 P ARA 7.5.1 THAT NOTICE WAS ISSUED FROM HIS OFFICE ON 25.07.2017 AND SENT BY SPEED POST FIXING THE DATE OF HEARING ON 17.08.2017. THE SAID NOTICE WAS RETURNED BACK BY THE POSTAL AUTHORITY UNSERVED ON 0 2.08.2017 WITH THE REMARK INCOMPLETE ADDRESS. THEREFORE HE INFER RED THAT THE ASSESSEE HAS EITHER LEFT THE PREMISES OR HAS GIVEN WRONG ADDRESS AND DELIBERATELY ENSURED THAT NOTICE COULD NOT BE S ERVED UPON THE ASSESSEE. HENCE, HE DISMISSED THE APPEAL OF THE ASS ESSEE OBSERVING THAT SUFFICIENT OPPORTUNITY WERE GIVEN TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS BUT THE ASSESSEE DELIBERATELY AVOIDED T AKING THOSE OPPORTUNITIES. 5. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE , IN MY CONSIDERED VIEW, IN ORDER TO RENDER SUBSTANTIAL JUS TICE TO THE ASSESSEE, THE MATTER SHOULD BE REMANDED BACK TO THE FILE OF THE 3 ITA N O. 13/DEL/2018 COMMISSIONER OF INCOME TAX (APPEALS) TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH ON MERITS OF THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL. IT IS THE DUTY OF THE COMMISSIONER O F INCOME TAX (APPEALS) TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERITS ON THE BASIS OF MATERIALS AVAILABLE ON RECORD EVEN THOUGH THE ASSESSEE FAILS TO PUT IN APPEARANCE ON THE DATE OF HEARING F IXED BY HIM. 6. THE DEPARTMENTAL REPRESENTATIVE, SHRI S.L.ANURAG I, SR. DR HAD NO OBJECTION TO THE MATTER BEING RESTORED BACK TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJU DICATION. HENCE, I SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO HIS FILE FO R ADJUDICATION OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING PR OPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DECEMBER, 2018 AT NEW DELHI. SD/- (N.S.SAINI) ACCOUNTANT MEM BER DATED: 27.12.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 4 ITA N O. 13/DEL/2018 TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 27.12.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 27. 12.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 27.12.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 27.12.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 27.12.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER