Vaish Education Foundation, Delhi V. DDIT(E), New Delhi

ITA 1356/DEL/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5488 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 14-10-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 16-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: RAKESH JAIN; SAJEVA DEORA
• Keywords: Principle of natural justice; Additional evidence
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H: NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTA NT MEMBER ITA NO. 1356/DEL/2011 ASSESSMENT YEAR 2006-2007 VAISH EDUCATION FOUNDATION VS DDIT (E) 14, RAJKAMAL SADAN TRUST CIRCLE IV COMMUNITY CENTRE, PREET VIHAR NEW DELHI. DELHI - 110- 092 AAATV4997P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAJEVA DEORA, C A & SHRI RA KESH JAIN, CA RESPONDENT BY : SHRI SAMEER SHARMA, DR ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE APPELLANT ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON SEVERAL GROUNDS I.E. GROUND NOS. 1 TO 9 OUT OF WHICH GROUND NOS. 1, 2.1,2.2 AND 3 ARE ON THE ALLEGED NON SERVICE OF NOTICES U/S 142 (1) AND 143(2) OF THE ACT BY THE LD. DDIT ISSUED TO ASSESSEE AND COMPLETION OF ASSESSMEN T ORDER EX PARTE. GROUND NOS. 4.1, 4.2, 4.3, 5 AND 6(IN PART) ARE AGAINST TH E ACTION OF THE LD. CIT(A) IN NOT APPRECIATING THE REQUEST FOR ADMITTING THE ADDITION AL EVIDENCE WHICH WAS RELEVANT FOR DISPOSAL OF THE MATTER. IN GROUND NO. 6 (IN PART) THE ASSESSEE HAS QUESTIONED SEVERAL ADDITIONS UPHELD BY THE LD. CIT( A). GROUND NO. 7, 8 AND 9 ARE GENERAL IN NATURE. ITA NO. 1356/DEL/11 2 2. IN SUPPORT OF GROUND NOS. 1 TO 3 ON THE ISSUE OF SERVICE OF NOTICES ISSUED BY THE AO ON THE ASSESSEE, THE LD. AR SUBMITTED THA T NOTICES ISSUED UNDER SECTIONS 142(1) AND 143(2) OF THE ACT WERE NOT SERV ED UPON THE ASSESSEE ON ITS GIVEN ADDRESS HENCE THE ASSESSMENT ORDER IS IN VIOL ATION OF PRINCIPLE OF NATURAL JUSTICE. IN SUPPORT THE LD. AR REFERRED THE CONTENT S OF PARA NOS. 1, 2 AND 3 OF THE ASSESSMENT ORDER WITH THIS CONTENTION THAT NOWH ERE THE AO HAS SPECIFICALLY STATED THAT AS TO WHEN NOTICES ISSUED U/S 142(!) AN D 143(2) WERE SERVED UPON THE ASSESSEE TO JUSTIFY THAT OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE AO ON THE DATES FIXED OR OTHERW ISE. 3. IN SUPPORT OF GROUND NOS. 4.1 TO 6 (IN P ART) ON THE ISSUE OF REJECTION OF APPLICATION FOR THE ADMISSION OF ADDITIONAL EVIDENC E THE LD. AR SUBMITTED THAT BEFORE THE LD. CIT(A) THE ASSESSEE HAD REQUESTED FO R ADMISSION OF THE ADDITIONAL EVIDENCE FILED UNDER RULE 46A OF THE ACT, THE LD. A R SUBMITTED THAT THE ADDITIONAL EVIDENCE COULD NOT BE FILED BEFORE THE AO DUE TO N ON AVAILABILITY OF THE OPPORTUNITY PROVIDED BY THE AO AND ADMISSION OF THO SE ADDITIONAL EVIDENCE WAS NECESSARY FOR JUST AND PROPER ASSESSMENT AGAINST TH E ASSESSEE. LD. CIT(A) ALSO FAILED TO APPRECIATE THAT SUBSTANTIAL PART OF THE A PPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) WERE BASED ON THOSE ADDITIONAL EVIDENCE. THUS THE LD. CIT(A) HAS AGAIN VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. TH E LD. CIT(A) HAS ERRED IN RELYING ON THE ARGUMENT ADVANCED BY THE AO AS CONTAINED IN THE REMAND REPORT FILED BY THE AO IN RESPONSE TO THE APPLICATION OF THE ASSESS EE FILED UNDER RULE 46A OF THE ACT 1962 FOR TAKING ON RECORD ADDITIONAL EVIDENCE. IN ITS REMAND REPORT THE AO ITA NO. 1356/DEL/11 3 HAS MENTIONED THAT NO ADDITIONAL GROUND OF THE APP EAL OF THE ASSESSEE DESERVES TO BE ACCEPTED AND FOR SUCH REASON THE LD. CIT(A) HAS MISPLACED RELYING ON THE OBJECTION OF THE AO EVEN THOUGH THE ASSESSEE HAD NO T FILED ANY APPLICATION FOR ADMISSION OF ANY ADDITIONAL GROUND BEFORE THE LD. C IT(A) THUS IT IS APPARENT THAT THE APPLICATION UNDER RULE 46A FILED BY THE ASSESSE E BEFORE THE LD. CIT(A) HAS BEEN REJECTED BY THE LD. CIT(A) WITHOUT APPLICATION OF MIND. 4. LD. DR ON THE OTHER HAND TRIED TO JUSTIFY THE ORDERS OF THE AUTHORITIES BELOW WITH THIS SUBMISSION THAT DESPITE ADEQUATE OP PORTUNITY BEING PROVIDED BY THE AUTHORITIES BELOW THE ASSESSEE DID NOT BOTHER T O AVAIL THOSE OPPORTUNITIES AND TO COOPERATE WITH THE AUTHORITIES BELOW AND NOW THEY WANT TO TAKE ADVANTAGE OF THEIR OWN LAPSE IN THIS REGARD, WHILE QUESTIONING THE ORDERS OF THE AUTHORITIES BELOW ON THE BASIS THAT PRINCIPLE OF NA TURAL JUSTICE HAS BEEN VIOLATED BY THEM. 5. CONSIDERING THE ABOVE SUBMISSION IN VIEW OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND SUBSTANCE IN THE CONTENTION OF THE L D. AR THAT NOWHERE IN THE ASSESSMENT ORDER THE AO HAS SPECIFICALLY MENTIONED AS TO ON WHICH DATE THE NOTICES ISSUED U/S 142 (1) AND 143(2) ON DIFFERENT DATES WERE SERVED UPON THE ASSESSEE AND THUS THERE WAS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS THERE IS NO REASON TO DOUBT THE CONTENTION OF THE ASSESSEE THAT NOTICES ISSUED BY THE AO WERE NOT SERVED ON THE GIVEN ADDRESS OF THE ASSESSE E. IN SUCH FACTS AND CIRCUMSTANCE THERE WAS SUFFICIENT REASON BEFORE TH E ASSESSEE NOT TO FURNISH THE RELEVANT DOCUMENTS IN SUPPORT OF ITS CLAIM IN THE I NCOME OF RETURN FILED AND ITA NO. 1356/DEL/11 4 BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. AP PRECIATING THESE FACTS WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT REASON BE FORE THE LD. CIT(A) TO ALLOW THE APPLICATION FOR THE ADMISSION OF THE ADDITIONAL EVIDENCE FILED UNDER RULE 46A BEFORE THE LD. CIT(A). WE THUS SET ASIDE THE MATTE R TO THE FILE OF THE AO TO EXAMINE THESE DOCUMENTS WHICH THE ASSESSEE INTENDED TO FILE AS ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) AFTER AFFORDING OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY PASSING A SPEAKING ORDER IN THIS R EGARD. THE GROUNDS ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH JANUARY, 2014. SD/- SD/- (J.S. REDDY) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 13 TH JANUARY, 2014 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSISTANT REGISTRAR, ITAT