Consulting Engineering Services (India) Pvt. Ltd., Gurgaon V. ACIT, New Delhi

ITA 1444/DEL/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5192 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: SALIL KAPOOR MS SOUMYA SINGH
• Keywords: Opportunity of being heard; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B, NEW DELHI) BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO:-1735 /DEL/2014 ( ASSESSMENT YEAR: 2009-10) DY. COMMISSIONER OF INCOME TAX , CIRCLE 3 (1) NEW DELHI VS. M/S. CONSULTING ENGINEERING SERVICES (INDIA) PVT. LTD. 57, MANJUSHA BUILDING, 5 TH FLOOR, NEHRU PLACE, NEW DELHI - 110019 APPELLANT RESPONDENT ITA NO:-1444 /DEL/2014 ( ASSESSMENT YEAR: 2009-10) M/S. CONSULTING ENGINEERING SERVICES (INDIA) PVT. LTD., 3 RD FLOOR, PLATINUM TOWER, 184, UDYOG VIHAR, PHASE-I, GURGAON- 122016 PAN AAACC5110G VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 3 (1) NEW DELHI APPELLANT RESPONDENT APPELLANT BY : SH. SALIL KAPOOR, ADVOCATE MS. SOUMYA SINGH, ADVOCATE RESPONDENT BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEARING : 28.05.2019 DATE OF PRONOUNCEMENT : 29.05.2019 2 ORDER PER: N. K. BILLAIYA, AM ITA NO.1444/DEL/2014 AND ITA 1735/DEL/2014 ARE CROS S APPEALS BY THE ASSESSEE AND THE REVENUE PREFERRED AGAINST THE ORDER OF THE CIT(A) -6, NEW DELHI DATED 31.12.2013. 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE D ISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. ASSESSEE HAS RAISED TWENTY SUBSTANTIVE GROUNDS O F APPEAL WHEREAS REVENUES APPEAL HAS ONLY ONE SUBSTANTIVE GROUND WI TH SUB GROUNDS. 4. THE ASSESSEE HAS ALSO RAISED TWO ADDITIONAL GROU NDS VIDE TWO APPLICATIONS DATED 19.03.2015 AND 04,01.2016. THE ADDITIONAL GROUNDS READ AS UNDER :- 3 5. SINCE THE ADDITIONAL GROUNDS GO TO THE ROOT OF T HE MATTER WE DECIDED TO PROCEED TO ADJUDICATE THE ADDITIONAL GROUNDS. T HE PREVIOUS HISTORY OF THE APPELLATE PROCEEDINGS BEFORE US CAN BE SUMMARIZ ED BY THE FOLLOWING INTERIM ORDER OF THE BENCH DATED 25.04.2019 :- PRESENT FOR THE ASSESSEE : SHRI SALIL KAPOOR, ADVOCA TE PRESENT FOR THE REVENUE : MS. NIDHI SRIVASTAVA, CIT DR 2. 4 3. 5 6. THE REVENUE CHALLENGED THE AFORESTATED INTERIM O RDER BY WAY OF WRIT PETITION BEFORE THE HONBLE HIGH COURT OF DELHI. T HE HONBLE HIGH COURT WAS PLEASED TO DISMISS THE WRIT PETITION. 7. BEFORE US THE DR STRONGLY OBJECTED TO THE ADMISS ION OF THE ADDITIONAL GROUND. IT IS THE SAY OF THE DR THAT THE ISSUES RA ISED VIDE ADDITIONAL GROUNDS WERE NEVER RAISED BEFORE THE LOWER AUTHORIT IES AND, THEREFORE, AFTER A GAP OF THREE YEARS THE ASSESSEE SHOULD NOT BE ALLOWED TO RAISE SUCH ISSUES BEFORE THE BENCH. 8. THE COUNSEL FOR THE ASSESSEE VEHEMENTLY STATED T HAT THE ISSUES RAISED VIDE ADDITIONAL GROUNDS CHALLENGE THE JURISD ICTION OF THE ASSESSING OFFICER AND THEREFORE, THE SAME SHOULD BE ADMITTED FOR ADJUDICATION. 9. WE FIND THAT ON IDENTICAL SET OF FACTS IN A. Y.2 008-09 THE TRIBUNAL REFUSED TO ENTERTAIN THE ADDITIONAL GROUND AND THE MATTER TRAVELLED UPTO THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT D IRECTED THE TRIBUNAL TO ADMIT THE ADDITIONAL GROUND AND ADJUDICATE THE SAME . 10. IN THE LIGHT OF THE PREVIOUS HISTORY OF THE ASS ESSEE AND CONSIDERING THE DIRECTIONS OF THE HONBLE HIGH COURT IN A. Y. 2 008-09 THE ADDITIONAL GROUNDS ARE ADMITTED. 6 11. WE HAVE ALREADY EXHIBITED THE INTERIM ORDER OF THE BENCH. HOWEVER, EVEN TODAY THE REVENUE COULD NOT FURNISH ANY ORDER U/S. 127 OF THE ACT. MOREOVER, THE DR COULD ONLY SUBMIT THE ORDER U/S. 1 20 (4) (B) OF THE ACT AND SHOWED HER INABILITY TO FURNISH THE ORDER SHEET ENTRIES PRIOR TO 23.08.2011 THOUGH THE ASSESSMENT RECORDS WERE PRODU CED FOR INSPECTION. 12. THOUGH IN THE ASSESSMENT ORDER THE ASSESSING OF FICER FROM PAGE 1 TO PAGE 4 OF HIS ORDER HAS NARRATED THE PROCEEDINGS RE LATED TO THE SPECIAL AUDIT U/S. 142 (2A) OF THE ACT AND HAS ALSO REFERRE D TO THE OBJECTIONS RAISED BY THE ASSESSEE TO AUDIT U/S. 142 (2A) OF THE ACT B UT NOWHERE WE FIND THAT THE ASSESSEE WAS GIVEN A SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO FILE A REPLY AND THEREAFTER DID NOT GRANT ANY OPPORTUNITY OF BEING HEARD. WE FIND THAT THE HONBLE DELHI HIGH COURT OF PUNJAB & HARYA NA IN THE CASE OF ISOLUX CORSAN INDIA ENGINEERING & CONSTRUCTION (P.) LTD. R EPORTED IN 287 CTR 92 HAS HELD THE EXPRESSION THE REASONABLE OPPORTUNITY OF BEING HEARD INHERS AN OBLIGATION TO AFFORD A REASONABLE OPPORTUNITY OF BEING HEARD. THE MERE CALLING UPON THE ASSESSEE TO FILE A REPLY WOULD NOT FULFILL THE PREEMPTORY CONDITION SET OUT IN THE FIRST PROVISO TO SECTION 1 42 (2A) OF THE ACT. THE GRANT OF A REASONABLE OPPORTUNITY OF BEING HEARD, I S A STATUTORY PRE CONDITION TO THE EXERCISE OF POWER U/S. 142 (2A) OF THE ACT, AND IF AN ASSESSING OFFICER FAILS AFFORD A REASONABLE OPPORTU NITY OF BEING HEARD, 7 BEFORE PASSING AN ORDER U/S. 142 (2A) OF THE ACT, S UCH AN ORDER WOULD BE NULL AND VOID. 13. AT THE SAME TIME, THE OBJECTIONS RAISED BY THE DR COULD NOT BE BRUSHED ASIDE LIGHTLY SINCE THE ASSESSEE GOT AMPLE OPPORTUNITY TO RAISE THE OBJECTIONS DURING THE ASSESSMENT PROCEEDINGS AND AL SO BEFORE THE FIRST APPELLATE AUTHORITY. 14. BE THAT AS IT MAY, TO PUT AN END TO THE ONGOING LITIGATION, WITH THE CONSENT OF THE REPRESENTATIVE OF BOTH THE SIDES WE DEEM IT FIT TO RESTORE THE ENTIRE ASSESSMENT TO THE FILES OF THE ASSESSING OFF ICER. THE ASSESSING OFFICER IS DIRECTED TO FRAME DENOVO ASSESSMENT. TH E ASSESSING OFFICER IS AT LIBERTY TO PROCEED AS PER THE PROVISIONS OF LAW BUT AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. THE ASSESSEE IS ALSO AT LIBERTY TO RAISE ANY OB JECTIONS AS PER THE PROVISIONS OF LAW. 16. IN THE INTEREST OF JUSTICE AND FAIR PLAY BOTH T HESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.05.2019. SD/- SD/- (SUDHANSHU SRIVASTAVA) (N.K.BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29.05.2019 NEHA 8 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 28.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 9 . 0 . 0 5 . 2 0 1 9 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 RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER