Vivek Mohan Singhal, Noida V. ITO (International Taxation), Gurgaon

ITA 1361/DEL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8793 (ITAT-DELHI)
• Duration Of Justice: 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2016-2017
• Appeal Filed On: 02-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay
• Section: 54EC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY-A NEW DLEHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K. NARSIMHA CHARY, JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] ITA.NO.1361/DEL/2020 ASSESSMENT YEAR: 2016-17 AND S.A. NO.267/DEL/2020 ASSESSMENT YEAR 2016-17 VIVEIK MOHAN SAIGAL, C/O-ANKUR GEOL, ADVOCATE, 1268, SECTOR-37, NODIA-201301 PAN-CSMPS0274G VS. ITO (INTERNATIONAL TAXATION), HSIIDC BUILDING, VANIJYA NIKUNJ, UDHYOG VIHAR, PHASE-V, GURGAON, HARYANA-122001 APPELLANT RESPONDENT APPELLANT BY : SH. ANKUR GOEL, ADVOCATE RESPONDENT BY : SH. R.K. GUPTA, SR. DR DATE OF HEARING : 24/07/2020 DATE OF ORDER : 24/07/2020 ORDER PER K. NARSIMHA CHARY, J.M. THE APPEAL IS FILED CHALLENGING THE ORDER DATED 24/ 02/2020 IN APPEAL NO.10145/2018-19 PASSED BY LD. COMMISSIONER OF INCOME TAX ITA.NO-1361/DEL/2020 & S.A. NO.267/DEL/2020 ASSESSMENT YEAR: 2016-17 PAGE | 2 (APPEALS)-43, (IN SHORT LD. CIT(A)), NEW DELHI, FOR THE ASSESSMENT YEAR 2016-17 IN THE CASE OF SHRI VIVEIK MOHAN SAIGAL, AN D PENDING DISPOSAL OF THE APPEAL ASSESSEE SEEKS STAY OF DEMAND IN STAY AP PLICATION NO.267/DEL/2020. 2. IT IS SUBMITTED BY THE LD. AUTHORIZED REPRESENTA TIVE (IN SHORT LD. AR) THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, MORE PARTICULARLY IN VIEW OF THE FACT THAT THE ORDER UND ER APPEAL IS AN EX-PARTE ORDER WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSEE AND ALSO THAT THE ASSESSEE HAS EVIDENCE IN HIS FAVOUR TO BE CONSIDERE D TO REACH THE JUST TAX LIABILITY, IT WOULD BE JUST CONVENIENT TO DISPOSE O F THE APPEAL ITSELF AT THIS STAGE. 3. LD. DR REPORTS NO OBJECTION TO PROCEED WITH THE APPEAL. RECORDING THE SAME, WE HEARD THE MATTER ON MERITS. 4. IT REMAINS AN ADMITTED FACT THAT THOUGH THE LD. CIT(A) EXTRACTED THE STATEMENT OF FACTS AS SUBMITTED BY THE ASSESSEE, HE NOTED IN THE IMPUGNED ORDER THAT IN SPITE OF SEVERAL OPPORTUNITI ES, THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE TO SUBSTANTIATE HIS CLAIM F OR DEDUCTION UNDER SECTION 54EC OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND THEREFORE, HE DREW AN INFERENCE THAT THE ASSESSEE WAS NOT INTE RESTED IN PURSUE THE APPEAL AND DOES NOT HAVE ANY SUBMISSIONS TO SUBSTAN TIATE HIS CLAIM. ON THIS PREMISE, THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE WITHOUT REFERRING TO THE MERITS OF THE CONTENTION OF THE AS SESSEE IN THE LIGHT OF THE ASSESSMENT ORDER. 5. WHEN THE ASSESSEE DOES NOT AVAIL THE OPPORTUNITY GRANTED TO HIM TO FURNISH THE EVIDENCE TO SUBSTANTIATE HIS CLAIM I N RESPECT OF DEDUCTION ITA.NO-1361/DEL/2020 & S.A. NO.267/DEL/2020 ASSESSMENT YEAR: 2016-17 PAGE | 3 UNDER SECTION 54EC OF THE ACT WHEREAS THE ASSESSING OFFICER HAD TREATED THE SAME AS SHORT TERM CAPITAL GAIN ( IN SHORT STCG ), IT IS NOT INCUMBENT ON THE APPELLATE AUTHORITY TO WAIT FOR A TIME TILL THE ASSESSEE CHOOSES TO ENTER APPEARANCE AND PROCEEDS WITH THE MATTER. THE APPELLATE AUTHORITY NO DOUBT CAN PROCEED TO DISPOSES OF THE MATTER EX-P ARTE, HOWEVER, BUT NOT IN LIMINE , BUT ONLY ON MERITS. NOTHING PREVENTED THE LD. CIT (A) IN THIS MATTER TO APPRECIATE HE CONTENTIONS RAISED BY THE A SSESSEE IN HIS STATEMENT ON FACTS BY REFERRING TO THE MERITS AND D EMERITS OF THE ASSESSMENT ORDER. 6. FOR WANT OF REASONS, THE FIRST APPELLATE ORDER I S INCAPABLE OF RENDERING ANY ASSISTANCE TO US TO APPRECIATE THE LE GALITY OR OTHERWISE THEREOF. WE ARE UNABLE TO UPHOLD THE CONCLUSIONS DR AWN BY THE FIRST APPELLATE AUTHORITY IN DISMISSING THE APPEAL FOR NO N DISCUSSION OF THE CASE ON MERITS. 7. FURTHER, NOW IT IS SUBMITTED ON BEHALF OF THE AS SESSEE THAT THE ASSESSEE IS READY WITH ALL THEIR EVIDENCES TO SUBST ANTIATE THEIR CLAIM FOR DEDUCTION UNDER SECTION 54EC OF THE ACT AND GIVEN A N OPPORTUNITY THEY ARE READY TO PLACE ON RECORD AND TO GET THE MATTER DISPOSED OF ON MERITS. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OP INION THAT IT IS FIT CASE TO SET-ASIDE THE IMPUGNED ORDER AND REMAND THE MATT ER TO THE FILE OF THE LD. CIT(A) FOR DISPOSING IT ON MERITS. NEEDLESS TO SAY THAT AN OPPORTUNITY WOULD BE GRANTED TO THE ASSESSEE AND SUBMITTED THE EVIDENCE AND TO BE VERIFIED THEIR CONTENTIONS. WE ORDERED ACCORDINGLY. ITA.NO-1361/DEL/2020 & S.A. NO.267/DEL/2020 ASSESSMENT YEAR: 2016-17 PAGE | 4 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE AND THE STAY PETITION IS DISMISSED AS INFRU CTUOUS. ORDER PRONOUNCED IN OPEN COURT ON THIS 24TH O F JULY 2020. SD/- SD/- (G.S.PANNU) (K. NARSIMHA CHARY) VICE PRESIDENT JUDICIAL M EMBER DATED: 24/07/2020 *SHEKHAR, SR. P.S.* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI