Nirmal Sharma, Delhi V. ITO, New Delhi

ITA 1337/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2720 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVRAJ SINGH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E , NEW DELHI BEFORE SH. O.P. KANT , ACCOUNTANT M EMBER AND S MT. BEENA A. PILLAI , JUDICIAL MEMBER ITA NO. 1337 /DE L/ 2017 ASSESSMENT YEAR : 2012 - 13 MR. NIRMAL SHARMA, 516, EXPRESS TOWER, COMMERCIAL COMPLEX, AZADPUR, DELHI VS. INCOME TAX OFFICER, WARD - 16(1), NEW DELHI PAN : AASPS9944B (APPELLANT) (RESPONDENT) APPELLANT BY MS. RANO JAIN, ADV. RESPONDENT BY SH. SHIVRAJ SINGH, SR. DR DATE OF HEARING 04.07.2017 DATE OF PRONOUNCEMENT 28.07.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19.01.2017 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 38, DELHI [IN SHORT THE CIT(A) ] , RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN PASSING THE ORDER EX - PARTE WITHOUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE EX - PARTE ORDER DESPITE THE FACT THAT THE NON - APPEARANCE ON THE LAST DATE OF HEARING WAS ON ACCOUNT OF REASONS BEYOND THE CONTROL OF THE ASSESSEE. 4. (I) ON THE FACTS AND CIRCUMST ANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF 2 ITA NO. 1337/DEL/2017 AN AMOUNT OF RS. 1,29,45,364/ - CLAIMED BY THE ASSESSEE UNDER SECTION 54 OF THE ACT. (II) THAT THE DISALLOWANCE WAS MADE DESPITE THE FACT THAT THE ASS ESSEE FULFILLS ALL THE CONDITIONS PRESCRIBED UNDER SECTION 54 AND IS ELIGIBLE FOR THE SAME. 5. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN SUBSTITUTING THE ALV TO AN AMOUNT OF RS.6,00,000/ - AS AGAINST RS.3,04,000/ - TAKEN BY THE ASSESSEE UNDER THE HEAD INCOME FROM HOUSE PROPERTY . (II) THAT THE ADDITION WAS MADE MISINTERPRETING THE PROVISIONS OF SECTION 23 OF THE ACT 6. (I) ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.8,50,000/ - BEING EXPENSES ON ACCOUNT OF STAMP DUTY INCURRED IN CASH BY THE ASSESSEE. 7. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPE AL. 2. THE FACTS NARRATED BY THE R EVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NON - REPRESENTATION BEFORE THE CIT(A) WAS DUE TO THE MISTAKE ON THE PART OF LEARNED AUTHORIZED REPRESENTATIVE. T HE LEARNED CIT(A) DISMISSED THE APPEAL EX - PARTE WITHOUT GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER. THEREFORE, SHE PRAYED THAT THE MATTER MAY BE SET - ASIDE TO THE FILE OF THE CIT(A). 4. LEARNED SR. DR, ON THE OTHER HAND, SUPPORTING THE ORDER OF LOWER AUTHORITIES, SUBMITTED THAT THE ASSESSEE WAS ALLOWED SUFFICIENT OPPORTUNITY BY THE CIT(A) OF BEING HEARD NEVERTHELESS, HE DID NOT BOTHER TO PURSUE HIS CASE BEFORE THE CIT(A). THUS, THE ASSESSEE MAY NOT BE ALLOWED FURTHER OPPORTUNITY. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. FROM THE IMPUGNED ORDER, WE FIN D THAT THE 3 ITA NO. 1337/DEL/2017 LEARNED CIT(A) HAS DECIDED THE APPEAL EX - PARTE DUE TO NON - REPRESENTATION BY THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. THE LEARNED COUNSEL HAS EXPLAINED BEFORE US THAT THE NON - REPRESENTATION BEFORE THE CIT(A) WAS DUE TO THE MISTAKE OF LEARNE D AR. IN OUR OPINION, THE ASSESSEE SHOULD NOT BE ALLOWED TO SUFFER JUSTICE DUE TO ANY OMISSION ON THE PART OF THE AUTHORIZED REPRESENTATIVE. 6. IN VIEW OF THE ABOVE CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, WE FEEL IT APPROPRIATE TO RESTORE THE MATTE R TO THE FILE OF THE LEARNED CIT(A), FOR DECIDING THE APPEAL AFRESH IN ACCORDANCE WITH LAW , AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, SUBJECT TO THE CONDITION THAT THE ASSESSEE WILL NOT SEEK ANY UNNECESSARY ADJOURNMENT BEFORE THE CIT(A). WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 28 TH JULY , 201 7 . SD/ - SD/ - ( BEENA A. PILLAI ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 TH JULY , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI