Manjit Singh Gahlot, New Delhi V. ITO Ward 43(5), New Delhi

ITA 1535/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8474 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 234B; 201; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1535/DEL/2019 (A.Y. 2012-13) MANJIT SINGH GAHLOT, A-1/18, DWARKA MOR, METRO STATION, SEWAK PARK, NAJAFGARH ROAD, UTTAM NAGAR, NEW DELHI 59 (PAN: AAKPG1155C) (APPELLANT) VS. ITO, WARD 43(5), NEW DELHI (RESPONDENT) ASSESSEE BY NONE REVENUE BY MS. EKTA VISHNOI, SR. DR. ORDER ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 08.1.2019 PASSED BY LD. CIT(A)-15, NEW DELHI RELEVA NT TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED CIT (APPEAL) IS BAD BOT H IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL DISMISSED BY THE CIT(A) IS UNTENABLE IN THE EYES OF LAW AS NO SATISFACTION WAS RECORDED BY THE CIT ( A) IN DISMISSING THE APPEAL FOR NON ATTENDANCE AND IN DISMISSING THE APPEAL BY SUSTAINING THE ADDITION MA DE BY THE ASSESSING OFFICER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED BY REJECTING APPEAL FILLE D BY ASSESSEE WITHOUT AFFORDING AN OPPORTUNITY OF BEING 2 HEARD AND BY DENYING TO THE ASSESSEE THE 'PRINCIPAL OF NATURAL JUSTICE'. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED BY FAILING TO DISMISSED T HE APPEAL, WHERE THE COUNSEL OF THE ASSESSEE HAD NEVER MISSED HIS ATTENDANCE ON ANY DATE ON WHICH HEARING WAS FIXED AND COULDN'T ATTEND THE APPELLANT PROCEED INGS FOR THE REASON BEYOND THE CONTROL OF ASSESSEE ON FI NAL DATE OF HEARING. 5. THAT THE LD.CIT (APPEALS) HAD FAILED TO CONSIDER THE SUBMISSIONS MADE BY THE ASSESSEE AND HAS PASSED THE IMPUGNED ORDER WITHOUT APPRECIATING THE EVIDENC E ALREADY PLACED ON RECORD BY THE APPEHANT. THE LD. C IT (APPEALS) FAILED TO APPRECIATE THE MERITS OF THE CA SE AND PASSED THE IMPUGNED ORDER WITH A PRE-MEDITATED MINDSET. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER (AO) IS BAD, BOTH IN THE EYE OF LAW AND ON THE FACTS. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED A.O. HAS ERRED BOTH ON FACTS AND IN LAW IN MAKING ASSESSMENT AT AN INCOME OF RS.12,87 ,660/- AS AGAINST RETURNED INCOME OF RS.3,89,160/- FILED BY THE ASSESSEE. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED A.O. HAS ERRED, BOTH ON FACTS AND IN LAW, I N INITIATING THE PROCEEDINGS UNDER SECTION 147, READ WITH SECTION 148, IGNORING THE FACT THAT THE SAME WAS BA D IN THE EYE OF LAW AS THE CONDITION AND PROCEDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIE D AND COMPLIED WITH. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE REASSESSMENT PROCEEDINGS INITIATED BY THE LEARNED A O ARE BAD IN THE EYE OF LAW AS THE REASONS RECORDED F OR THE ISSUE OF NOTICE UNDER SECTION 148 ARE BAD IN TH E EYE OF LAW. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE REASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 14 8 ARE BAD IN LAW AS THERE IS NO LIVE NEXUS IN THE REA SONS RECORDED AND THE BELIEF FORMED BY THE AO. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED APPELLANT AUTHORITY / AO HAS ERRED BOTH ON FACTS 3 AND IN LAW IN DRAWING ADVERSE INFERENCE AGAINST THE ASSESSEE ON THE BASIS OF MATERIAL COLLECTED AT THE BACK OF THE ASSESSEE AND WITHOUT GIVING IT PROPER AND ADEQUATE OPPORTUNITY TO REBUT THE SAME. 12. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED APPELLANT AUTHORITY / AO HAS ERRED BOTH ON FACTS AND IN LAW IN MAKING THE SAID ADDITION SOLELY RELYI NG ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WIN G. 13. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ADDITION MADE BY THE LEARNED AO IS UNTENABLE IN THE EYE OF LAW HAVING BEEN MADE WITHOUT PROVIDING OPPORTUNI TY TO CROSS EXAMINE THE PERSON ON THE BASIS OF WHOSE STATEMENT THE ALLEGATIONS HAVE BEEN MADE AGAINST TH E ASSESSEE AND WITHOUT FOLLOWING THE PRINCIPLE OF NAT URAL JUSTICE. 14. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED APPELLANT AUTHORITY /AO HAS ERRED BOTH ON F ACTS AND IN LAW IN MAKING THE ADDITION WITHOUT APPLYING HIS MIND AND IGNORING THE DETAILED EXPLANATIONS MAD BY TH AS E IN THIS REGARD. (II) THAT THE ABOVE SAID ADDITION HAS BEEN MADE BY INDULGING IN SURMISES, CONJECTURES AND WITHOUT BRIN GING ANY MATERIAL ON RECORD. 15. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED APPELLANT AUTHORITY/AO HAS ERRED BOTH ON FA CTS AND IN LAW IN MAKING ADDITION OF AN AMOUNT OF RS.8,98,500/- ON ACCOUNT OF CAPITATION FEES RECEIV ED IN CASH BY M/S SANTOSH MEDICAL COLLEGE. (II) THAT THE ABOVE SAID ADDITION HAS BEEN MADE BY THE APPELLANT AUTHORITY / AO ARBITRARILY WITHOUT BRINGI NG ON RECORD ANY EVIDENCE TO JUSTIFY THE PAYMENT OF FEE B Y THE ASSESSEE. 16. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED AO HAS ERRED BOTH ON FACTS AND IN LAW IN CHARGING INTEREST UNDER SECTION 234A, SECTION 234B AND SECTION 234C OF THE ACT. . 17. THE ABOVE GROUNDS OF APPEAL ARE ALL INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. 18. THE APPELLANT FURTHER SEEKS LEAVE OF THIS HON'B LE TRIBUNAL TO ALTER, AMEND, MODIFY, AMPLIFY OR WITHDR AW 4 ANY OR ALL THE ABOVE GROUNDS OF APPEAL, OR ADD ANY FURTHER GROUNDS, BEFORE OR AT THE TIME OF HEARING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT D ISPUTED BY THE LD. DR, HENCE, THE SAME ARE NOT REPEATED HERE FOR T HE SAKE OF CONVENIENCE. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTE R IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND T HE ISSUE INVOLVED IN THE PRESENT APPEAL, I AM OF THE VIEW THAT N O USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING THE PRESENT APPE AL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE R ECORDS. 4. AFTER PERUSING THE IMPUGNED ORDER, IT IS FOUND THAT LD. CIT(A) HAS PASSED THE EXPARTE IMPUGNED ORDER AGAINST THE ASSES SEE WITHOUT GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER O F THE LD. CIT(A). 6. I HAVE HEARD LD. DR AND PERUSED THE RECORDS ESPE CIALLY THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY. I FIND THAT THE ASSESSEE REMAIN NON-COOPERATIVE BEFORE THE LD. CIT( A). BUT IN MY VIEW SUFFICIENT OPPORTUNITY OF HEARING FOR SUBSTANTIATIN G THE CLAIM OF THE 5 ASSESSEE HAS NOT BEEN GIVEN BY THE LD. CIT(A) TO TH E ASSESSEE, WHO VIDE HIS IMPUGNED ORDER DATED 08.01.2019 HAS DECIDED THE APPEAL OF THE ASSESSEE EXPARTE. THEREFORE, IN THE INTEREST OF JUS TICE, THE ISSUES IN DISPUTE ARE REMITTED BACK TO THE FILE OF THE LD. CI T(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 10TH DAY OF OCTOBER, 201 9. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED THE 10 TH DAY OF OCTOBER, 2019 SRB COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), NEW DELHI. 5. CIT(ITAT), NEW DELHI AR, ITAT