M/s. Rakesh Gupta HUF, New Delhi V. ACIT, New Delhi

ITA 1496/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8300 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN GOTRU
• Assessee Lawyers: D V TANEJA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

ITA NO. 1496/DEL/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO . 1496 /DEL/201 4 A.Y. 2007 - 08 SH. RAKESH GUPTA (HUF) C/O D.V. TANEJA, CA 13/17, PUNJABI BAGH EXTN., NEW DELHI (PAN: AAFHR8711L) VS. ACIT, CIRCLE 27(3), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. D.V. TANEJA, CA DEPARTMENT BY : SH. SHRAVAN GOTRU, SR. DR DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 0 00 06 66 6- -- -0 00 04 44 4- -- -201 201 201 2016 66 6 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 07 0707 07- -- -0 00 04 44 4- -- -201 201 201 2016 66 6 ORDER ORDER ORDER ORDER PER H.S. SIDHU : JM PER H.S. SIDHU : JM PER H.S. SIDHU : JM PER H.S. SIDHU : JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVIII, NEW DEL HI DATED 19.7.2012 PERTAINING TO ASSESSMENT YEAR 2007-08 ON THE FOLLOW ING GROUNDS. 1. THAT THE LEARNED A.O. HAS ERRED IN FACTS AS WEL L AS IN LAW BY COMPLETING ASSESSMENT EX-PARTY UNDER SECTION 144 OF THE INCOME TAX ACT WITHOUT VALID NOTICE AND WITHOUT GIVING ANY OPPORTU NITY TO APPELLANT OF BEING HEARD AND EXPLAIN THEIR CASE AND FURNISH TO T HE ASSESSING OFFICER WITH THE DETAILS THAT HE COULD AND WOULD HAVE REQUI RED FOR HIS SATISFACTION, ITA NO. 1496/DEL/2014 2 THUS THE ASSESSMENT FRAMED AND CONSEQUENT DISALLOWA NCES MADE AND DISMISSAL OF APPEAL BY LD. CLT(A) ARE BAD IN LAW. 2. THAT THE LEARNED A.O. HAS ERRED IN FACTS AND IN LAW IN MAKING EX- PARTY ASSESSMENT UNDER SECTION 144 AS NONE OF THE N OTICES FOR HEARING AS ALLEGED TO HAVE BEEN SENT OR AFFIXED HAVE BEEN RECE IVED AND NO NOTICE WAS SERVED TO ASSESSEE FOR HEARING ON 29.09.2009 AS ALLEGED IN THE ASSESSMENT ORDER AND THEREFORE THE ASSESSMENT FRAME D AND DISMISSAL OF APPEAL BY LD.CIT (A) ARE BAD IN LAW. 3. THAT THE EX-PARTY ASSESSMENT FRAMED UNDER SECTIO N 144 OF THE INCOME TAX ACT,1961 AND ISSUE OF NOTICES DATED 30.0 9.2009 FOR IMPOSING PENALTY UNDER SECTION 271 (1) (C) AND DISMISSAL OF APPEAL BY LD.CIT (A) ARE BAD IN LAW. 4. THAT THE ASSESSMENT COMPLETED EX-PARTY, NEED TO BE REASSESSED BY GIVING THE APPELLANT THE NECESSARY OPPORTUNITY OF B EING HEARD, EXPLAIN THE CASE, SUBMIT THE RELEVANT DETAILS AND OFFER NECESS ARY EXPLANATIONS AND SUBMISSIONS AND DISMISSAL OF APPEAL BY LD. CLT(A) A RE BAD IN LAW. 5. THAT THE APPELLANT'S APPEAL BE ADMITTED ON GROUN DS OF PRINCIPLES OF NATURAL JUSTICE AND THE APPELLANT MAY PLEASE BE GIV EN THE RIGHT AND LIBERTY TO AMEND AND ALSO OFFER FURTHER GROUNDS OF APPEAL A ND SUBMISSIONS AND DISMISSAL OF APPEAI BY LD. CIT(A) ARE BAD IN LAW. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES A RE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, SH. DV TANEJA, CA/ LD. A UTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND MADE A STATEMENT THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE FROM THE AO EITHER BY RPAD OR B Y AFFIXTURE AS STATED IN THE ITA NO. 1496/DEL/2014 3 ASSESSMENT ORDER. HE FURTHER STATED THAT SIMILAR LY NO NOTICE HAS BEEN RECEIVED BY THE ASSESSEE FROM THE OFFICE OF THE LD. CIT(A) A ND THE LD. CIT(A) HAS ALSO DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE E XPARTE, WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LD. AU THORISED REPRESENTATIVE UNDERTAKES TO FULLY COOPERATE IN THE ASSESSMENT PR OCEEDINGS AND ASSURED NOT TO TAKE UNNECESSARY ADJOURNMENT, IF THIS BENCH SET ASI DE THE ISSUE IN DISPUTE TO THE ASSESSING OFFICER. HE FURTHER UNDERTAKES THAT AS SESSEE HAS CHANGED HIS ADDRESS AND THE NOTICES MAY BE ISSUED TO THE ASSESS EE THROUGH HIM AT HIS OFFICIAL ADDRESS WHICH HAS BEEN GIVEN IN FORM NO. 36 OF THE APPEAL. HE STATED THAT IN SUPPORT OF HIS CONTENTION, ASSESSEE HAS ALSO FILED AN AFFIDAVIT AT PAGE NO. 21 OF THE PAPER BOOK STATING THEREIN THAT NEITHER THE AS SESSEE NOR HIS STAFF HAS RECEIVED ANY OF THE NOTICES FROM THE ACIT, CIRCLE 27(1), NEW DELHI IN RESPECT OF INCOME TAX ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2007-08 EITHER BY PROCESS SERVER OR BY AFFIXTURE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE REVENUE AUTHORITIES. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORI TIES AND WE ARE OF THE CONSIDERED VIEW THAT AO WITHOUT FOLLOWING THE PRESC RIBED PROCEDURE UNDER THE LAW, ISSUED NOTICES THROUGH AFFIXTURE AND THEREAFT ER COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT. SIMILARLY, LD. CIT(A) HAS A LSO WRONGLY UPHELD THE ORDER OF THE AO WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSE E. IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUES IN DI SPUTE REQUIRES THOROUGH INVESTIGATION AT THE LEVEL OF THE AO AND THE RIGHT OF SUBSTANTIATING THE CLAIM BY THE ASSESSEE CANNOT BE SNATCHED IN THIS WAY. 6.1 KEEPING IN VIEW OF THE STATEMENT MADE BY SH. D V TANEJA, CA/AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT HE WILL COOPER ATE IN THE ASSESSMENT ITA NO. 1496/DEL/2014 4 PROCEEDINGS BEFORE THE AO AND WILL NOT TAKE UNNECES SARY ADJOURNMENT AND THE NOTICE MAY BE ISSUED TO THE ASSESSEE THROUGH HIM AT HIS OFFICIAL ADDRESS MENTIONED IN FORM NO. 36 AND IN THE INTEREST OF JUS TICE, WE SET ASIDE THE ISSUES IN DISPUTE TO THE AO FOR DECIDING THE SAME AFRESH, UND ER THE LAW, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. IT IS ALSO MADE CLEAR THAT THE NOTICE TO THE ASSESSEE BE GIVEN ON THE FOLLOWIN G ADDRESS. M/S RAKESH GUPTA (HUF) C/O SH. DV TANEJA, CA, 13/17, PUNJABI BAGH EXTN., NEW DELHI 110 026 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/04/2016. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI] ]] ] [H.S. SIDHU] [H.S. SIDHU] [H.S. SIDHU] [H.S. SIDHU] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATE 07/04/2016 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES