M/s. Sun Cruiser Lubricants Ltd, New Delhi V. ITO, New Delhi

ITA 1510/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1342 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 03-11-2009
• Assessment Year: 1991-1992
• Appeal Filed On: 16-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHLRI H K LAL
• Keywords: Principle of natural justice; Set aside
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE SHRI K.D. RANJAN, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.1510/DEL./2009 (ASSESSMENT YEAR : 1991-92) M/S SUN CRUISER LUBRICANTS LTD., VS. ITO, WARD 9(3 ), 1E/13, JHANDEWALAN EXTENSION, NEW DELHI. NEW DELHI. (PAN/GIR NO.AAACS0491G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SALIL AGGARWAL, ADV. REVENUE BY : SHLRI H.K. LAL, SR.DR ORDER PER K.D. RANJAN, AM THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 199 1-92 ARISES OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XII, NEW DELHI . THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ORIGINAL ASSESSMENT WAS MADE U/S 143(3) AT AN INCOME OF RS.8,30,021/-, WHEREIN VARIOUS ADDITIONS WERE MADE. THE MATTER TRA VELED UP TO THE LEVEL OF ITAT. THE ITAT IN ORDER DATED 21.7.2006 IN I.T.A. NO.127/DEL. /99 SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIONS TO DECIDE THE ISSUE AFRESH. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IN PURSUANCE OF DIRECTIONS ISSUED BY THE ITAT, THE ASSESSING OFFICER FIXED THE CASE FOR HEARING. THE NOTICE ISSUED BY THE ASSESSING OFFICER WAS RETURNED BACK WITH THE POSTAL REMARK REFUSED. THE ASSESSING OFFICER FIXED THE CASE AGAIN FOR HEARING ON 10.7.20 07 BY SERVICE OF THE NOTICE THROUGH INSPECTOR OF THE INCOME-TAX. SHRI RAHUL GUPTA, AT TENDED THE PROCEEDINGS AND WAS ASKED TO FURNISH CERTAIN DETAILS ON 20.7.2007, BUT NONE A TTENDED ON BEHALF OF THE ASSESSEE NOR ADJOURNMENT WAS SOUGHT. THE ASSESSING OFFICER ALSO ISSUED SHOW CAUSE NOTICE U/S144 OF THE ACT. AS NO EXPLANATION WAS GIVEN BY THE ASSESS EE, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 144 OF THE I.T. ACT. I.T.A. NO.1510/DEL.2009 (A.Y. : 1991-92) 2 3. ON APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AS NONE APPEARED ON BEHALF OF THE ASSESSEE, SHE ALSO PASSED EX-PARTE OR DER CONFIRMING THE ADDITIONS MADE IN THE ASSESSMENT ORDER. 4. BEFORE US, LD.AR OF THE ASSESSEE SUBMITTED THAT FOR ASSESSMENT YEAR 1993-94, ITAT, DELHI BENCH C IN I.T.A. NO.3010/DEL./2009 D ATED 31.08.2009 SET ASIDE THE MATTER TO THE FILE OF THE COMMISSIONER OF INCOME-TA X (APPEALS) WITH THE DIRECTIONS TO EXAMINE THE CASE OF THE ASSESSEE IN THE LIGHT OF PA PER BOOK FILED BEFORE HIM. LD.AR OF THE ASSESSEE HAS ALSO SUBMITTED THAT HE UNDERTAKES TO APPEAR BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AND WILL EXTEND FULL COOPERAT ION FOR FINALIZATION OF THE APPEAL. ON THE OTHER HAND, LD.SR.DR SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). HE SUBMITTED THAT ASSESSEE IS NEITHER A PPEARING BEFORE THE ASSESSING OFFICER NOR THE CIT(A) AND, THEREFORE, THE ORDER SHOULD BE UPHELD. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS A FACT THAT ASSESSEE HAD NEITHER COOPERATED W ITH THE ASSESSING OFFICER NOR BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) . AS THE ASSES SEE WAS AGGRIEVED BY THE ORDER OF ASSESSING OFFICER PASSED EX-PARTE, AN APPEAL WAS FI LED BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AGAINST THE ORDER OF THE ASSES SING OFFICER, BUT ADOPTED THE SAME ATTITUDE NOT TO APPEAR BEFORE THE COMMISSIONER OF I NCOME-TAX (APPEALS) WHICH RESULTED AN EX-PARTE ORDER. BEFORE US, LD.COUNSEL FOR THE A SSESSEE HAS UNDERTAKEN THE RESPONSIBILITY TO APPEAR BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AND EXTEND FULL COOPERATION FOR ADJUDICATION OF THE ISSUE. WE HAVE CONSIDERED THE PROMISE GIVEN BY SHRI SALIL AGGARWAL, ADVOCATE. IN THE PRINCIPLES O F NATURAL JUSTICE, WE SET ASIDE THE MATTER TO THE FILE OF THE COMMISSIONER OF INCOME-TA X (APPEALS) THOUGH IN SUCH TYPE OF CASES , ASSESSEE DOES NOT DESERVE ANY SYMPATHY. ON ONE HAND, THE ASSESSEE HAD DELIBERATELY REFUSED TO RECEIVE NOTICES PARTICULARL Y, WHEN THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE BY ITAT TO THE FILE OF THE ASSESSING OFFICER. ON THE OTHER HAND, HE HAD NOT COOPERATED WITH LOWER AUTHORITIES. HOWEVER, KEEPI NG IN VIEW THE PROMISE GIVEN BY SHRI SALIL AGGARWAL, WE SET ASIDE THIS ISSUE TO THE FILE OF THE COMMISSIONER OF INCOME-TAX (APPEALS). WE MAY LIKE TO MENTION THAT ITAT IN ORDE R DATED 31.8.2009 FOR ASSESSMENT I.T.A. NO.1510/DEL.2009 (A.Y. : 1991-92) 3 YEAR 1993-94 ON SIMILAR ISSUE HAD SET ASIDE THE ORD ER TO THE FILE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) WITH THE FOLLOWING DIRECTIONS: WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD. FROM THE FACTS MENTIONED ABOVE, IT EMERGES THAT THE ASSE SSEE HAS NOT TAKEN DUE DILIGENCE IN COMPLYING WITH ITS LEGAL OBLIGATIONS, WHICH IS UNBECOMING CONDUCT ON THE PART OF A TAXPAYER. WHEN HEARING NOTICES ARE GIVEN BY ASSESSING OFFICER AND CIT(A), THEY ARE EXPECTED TO BE VIGILANTLY COMP LIED WITH. THEREFORE, THE ASSESSEE HAS EXPRESSED APOLOGIES FOR ITS CONDUCT AN D CONTRIBUTES IT TO THE CIRCUMSTANCES OF CLOSURE OF FACTORY. COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOT GIVEN COGENT REASONS CONSIDERING THE PAPER BOOK , WHICH IS FILED BY THE ASSESSEE BEFORE ASSESSING OFFICER. IN OUR VIEW, CO MMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE CONSIDERED THE MATERIAL AVAIL ABLE ON RECORD I.E. ASSESSMENT FOLDER. IN THE ABSENCE OF PROPER CONSIDERATION OF THE MATERIAL SUPPLIED BY ASSESSEE, THE ORDER OF COMMISSIONER OF INCOME-TAX ( APPEALS) BECOMES NON- SPEAKING IN NATURE. IN THE ENTIRETY OF THE FACTS A ND CIRCUMSTANCES, WE SET ASIDE THE ISSUE BACK TO THE FILE OF COMMISSIONER OF INCOME-TA X (APPEALS) AND CONSIDER THE APPEAL OF THE ASSESSEE ON MERITS AFTER CONSIDERING WHATEVER MATERIAL IS AVAILABLE ON THE RECORD OF THE ASSESSING OFFICER IN HIS ASSES SMENT FOLDER. ASSESSEE IS REMINDED OF HIS VOLUNTARY UNDERTAKING TO PROMPTLY C OMPLY WITH THE PROCEEDINGS. 7. IN VIEW OF ABOVE, WE SET ASIDE THE ORDER FOR THE YEAR UNDER CONSIDERATION TO THE FILED OF THE COMMISSIONER OF INCOME-TAX (APPEALS) WITH THE SIMILAR DIRECTIONS AS ARE GIVEN IN ASSESSMENT YEAR 1993-94 BY THE TRIBUNAL. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN OPEN COURT ON 03.11.2009. SD/- SD/- (GEORGE MATHAN) (K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, NOV. 3, 2009. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT