Aquil Husain, New Delhi V. ITO, Ward-1(1), Noida

ITA 1403/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0494 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Opportunity of being heard; Condonation of delay; TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NOS.1403 & 1404/DEL/2019 ASSESSMENT YEARS: 2009-10 SH. AQUIL HUSSAIN, C/O-VSVG & CO., CAS, 401, CA CHYAMBERS, 18/12, WEA KAROL BAGH, NEW DELHI VS. ITO, WARD-1(1), NOIDA PAN : ABHPH4728G (APPELLANT) (RESPONDENT) ORDER PER H.S. SIDHU, J.M.: THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST TWO SEPARATE ORDERS, EACH DATED 28.09.2018, PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, NOIDA, REL ATED TO QUANTUM OF ADDITIONS AND PENALTY. SINCE BOTH THE AP PEALS RELATED TO THE SAME ISSUE, THEY WERE HEARD TOGETHER AND DIS POSED OFF BY APPELLANT BY SHRI GAURAV GOYAL, CA SHRI VINEET AGRAWAL, CA RESPONDENT BY SHRI PRADEEP SINGH GAUTAM, SR.DR DATE OF HEARING 18.12.2019 DATE OF PRONOUNCEMENT 26.12.2019 2 ITA NOS.1403/DEL/2019 & 1404/DEL/2019 WAY OF THIS CONSOLIDATED ORDER. THE GROUNDS OF APPE AL RAISED IN ITA NO. 1403/DEL/2019, ARE REPRODUCED AS UNDER 1- BECAUSE IN ANY VIEW THE ADDITION MADE BY THE A.O . AMOUNTING TO RS.31,50,000 AND CONFIRMED BY LD. CIT(A) FOR GEN UINE INVESTMENT MADE IN IMMOVABLE PROPERTY OUT OF BANK LOAN, AS UNE XPLAINED INVESTMENT, IS ON WRONG NOTION, WITHOUT PROPER OPPO RTUNITY, ILLEGAL AND AGAINST THE FACTS AND LAW OF THE CASE AND THE A SSESSMENT ORDER IS LIABLE TO BE QUASHED. 2- BECAUSE IN ANY VIEW THE ASSESSMENT ORDER PASSED BY A.O. EX- PARTE AND CONFIRMED BY LD. CIT(A) WITHOUT HAVING JU RISDICTION ON THE ASSESSEE IS ARBITRARY, ILLEGAL AND AGAINST THE FACT S OF THE CASE. 3- BECAUSE IN ANY VIEW THE ASSESSMENT ORDER PASSED BY A.O. EX- PARTE AND CONFIRMED BY LD. CIT(A) WITHOUT ISSUING A ND SERVING ANY NOTICE U/S 143(2)/148 TO THE ASSESSEE IS ARBITRARY, ILLEGAL AND AGAINST THE FACTS OF THE CASE. 4- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN DECIDING THE APPEAL IN HASTE WITHOUT SERVING THE NOTICE TO THE A PPELLANT AND WITHOUT APPRECIATING THE FACT THAT THE NOTICE FOR A PPEAL WAS RECEIVED BY THE APPELLANT AFTER THE DATE OF HEARING AND IGNO RED THE SPEED POST RECEIPT EVIDENCING THE DATE OF DELIVERY OF NOT ICE TO THE APPELLANT. 5- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN REJECTING THE APPEAL AS NON MAINTAINABLE U/S 249(2) STATING APPEL LANT HAS NEVER REQUESTED FOR CONDONATION OF DELAY, WHEREAS ALL THE FACTS RELATING TO THE DELAY AND REQUEST FOR CONDONATION OF DELAY IN F ILING APPEAL WAS MADE IN FORM 35 ITSELF AND ALSO IN THE SUBMISSIONS MADE. 6- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN REJECTING THE APPEAL AS NON MAINTAINABLE U/S 249(4)(B) STATING AP PELLANT HAS NOT PAID ADVANCE TAX, WHEREAS ENTIRE TDS ON HIS SALARY INCOME WAS ALREADY PAID AND THIS FACT WAS STATED IN FORM 35 IT SELF. 7- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN DECIDING THE APPEAL EX-PARTE WITHOUT CONSIDERING ALL THE GROUND OF APPEAL, SINCE THE GROUND OF APPEAL RELATING TO PROPERTY PURCHASED OUT OF BANK LOAN WAS NOT CONSIDERED AND AS SUCH HAS NOT PASSED THE S PEAKING ORDER. 8- BECAUSE IN ANY VIEW, AND WITHOUT PREJUDICE TO TH E ABOVE GROUNDS, ADDITION MADE, INTEREST CHARGED AND THE AS SESSMENT ORDER 3 ITA NOS.1403/DEL/2019 & 1404/DEL/2019 PASSED ARE WRONG, ILLEGAL, WITHOUT PROPER OPPORTUNI TY, BAD IN LAW AND AGAINST THE FACTS AND LAW OF THE CASE. 9- BECAUSE THE APPELLANT CRAVES LEAVE TO ADD OR ALT ER, ANY OR MORE GROUND OR GROUNDS OF APPEAL, AT THE TIME OF HEARING OF APPEAL. 2. THE GROUNDS OF APPEAL RAISED IN ITA NO.1404/DEL/20 19 ARE REPRODUCED AS UNDER: 1- BECAUSE IN ANY VIEW THE PENALTY LEVIED BY THE A. O. AMOUNTING TO RS.9,63,050 AND CONFIRMED BY LD. CIT(A) FOR GENU INE INVESTMENT MADE IN IMMOVABLE PROPERTY OUT OF BANK LOAN, AS UNE XPLAINED INVESTMENT, IS ON WRONG NOTION, WITHOUT PROPER OPPO RTUNITY, ILLEGAL AND AGAINST THE FACTS AND LAW OF THE CASE AND THE A SSESSMENT ORDER IS LIABLE TO BE QUASHED. 2- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN DECIDING THE APPEAL IN HASTE WITHOUT SERVING THE NOTICE TO THE A PPELLANT AND THEREFORE IS WITHOUT PROPER OPPORTUNITY. 3- BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN RENDERING THE APPEAL AS NON MAINTAINABLE U/S 249(1) (A) DUE TO NO N-PAYMENT OF APPEAL FEES, WHEREAS THE APPEAL FEES WAS PAID ONLIN E AND CHALLAN OF THE SAME WAS UPLOADED ALONG WITH PENALTY ORDER A ND NOTICE OF DEMAND AT THE TIME OF FILING OF APPEAL AND ALSO THE DETAILS OF APPEAL FEES PAID WAS STATED IN FORM 35. 4- BECAUSE IN ANY VIEW, AND WITHOUT PREJUDICE TO TH E ABOVE GROUNDS, PENALTY LEVIED AND THE ORDER PASSED ARE WR ONG, ILLEGAL, WITHOUT PROPER OPPORTUNITY, BAD IN LAW AND AGAINST THE FACTS AND LAW OF THE CASE. 5- BECAUSE THE APPELLANT CRAVES LEAVE TO ADD OR ALT ER, ANY OR MORE GROUND OR GROUNDS OF APPEAL, AT THE TIME OF HEARING OF APPEAL. 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSING OFFICER HAS COMP LETED THE ASSESSMENT UNDER 144 OF THE INCOME-TAX ACT, 1961 (F OR SHORT THE ACT) AND THE FIRST APPELLATE AUTHORITY HAS AL SO DECIDED 4 ITA NOS.1403/DEL/2019 & 1404/DEL/2019 THE ISSUE IN DISPUTE WITHOUT AFFORDING SUFFICIENT O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE ONLY REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE LEARNED FIRST AP PELLATE AUTHORITY TO DECIDE THE ISSUE AFRESH AS PER LAW, AF TER AFFORDING FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. LEARNED DR, ON THE OTHER HAND, RELIED ON THE ORDER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY AND STATED THAT THE ASSESSING OFFICER AS WELL AS THE FIRST APP ELLATE AUTHORITY HAS GIVEN FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, BUT THE ASSESSEE DID NOT AVAIL THE SAME, THEREFORE, THE IMPUGNED ORDER PASSED BY THE LEARNED FIRST APPE LLATE AUTHORITY MAY BE UPHELD AND THE APPEALS OF THE ASSE SSEE MAY BE DISMISSED. 5. I HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE ORDERS PASSED BY THE REVENUE AUTHORITY, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LEARNED FIRST APPELLAT E AUTHORITY. NO DOUBT, THE ASSESSING OFFICER HAS COMP LETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT. THE LEARNE D FIRST APPELLATE AUTHORITY HAS GIVEN VARIOUS REASONS FOR N ON- APPEARANCE OF THE ASSESSEE AND DECIDED THE ISSUES I N DISPUTE 5 ITA NOS.1403/DEL/2019 & 1404/DEL/2019 AGAINST THE ASSESSEE BY MENTIONING VARIOUS REASONS IN THE IMPUGNED ORDER. I AM NOT COMMENTING UPON THE REASON S MENTIONED BY THE LEARNED FIRST APPELLATE AUTHORITY FOR DISMISSING THE APPEAL FILED BY THE ASSESSEE, BUT I AM OF THE VIEW THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE ON VARIOUS TECHNICAL GRO UNDS BUT WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE, WHICH IS CONTRARY TO THE PRINCIPLES OF NA TURAL JUSTICE. IN MY CONSIDERED VIEW, THE ISSUE IN DISPUTE IN BOTH THE APPEALS, I.E., QUANTUM AS WELL AS THE PENALTY, REQU IRES RECONSIDERATION AT THE LEVEL OF THE LEARNED FIRST A PPELLATE AUTHORITY WITH THE DIRECTION TO DECIDE THE SAME AFR ESH AS PER LAW, AFTER GIVING FULL OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. IT IS MADE CLEAR THAT THE ASESSEE WILL CO OPERATE IN SMOOTH PROCEEDINGS BEFORE THE LEARNED FIRST APPELLA TE AUTHORITY AND WILL ANSWER TO EACH AND EVERY QUERIES MADE BY THE LEARNED FIRST APPELLATE AUTHORITY. ACCORDINGL Y, IN THE INTEREST OF JUSTICE, THE ISSUE INVOLVED IN BOTH THE APPEALS, I.E., 1403/DEL/2019 AND 1404/DEL/2019 RELATED TO QUANTUM OF ADDITIONS AND PENALTY RESPECTIVELY ARE SET ASIDE TO THE FILE OF 6 ITA NOS.1403/DEL/2019 & 1404/DEL/2019 LEARNED FIRST APPELLATE AUTHORITY WITH THE DIRECTIO N TO DECIDE THE ISSUE AFRESH, AFTER AFFORDING OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26 TH DECEMBER, 2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 26 TH DECEMBER, 2019. RK/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI