Naresh Bansal, New Delhi V. ITO, New Delhi

ITA 1547/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7073 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 15-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 23-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: UMESH THAKUR
• Keywords: Business income; Opportunity of being heard
• Section: 80C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC-II, NEW DELHI BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.1547/DEL/2016 ASSESSMENT YEAR : 2011-12 SHRI NARESH BANSAL, UMESH KRISHAN & ASSOCIATES, CAS, 209, SHRI RAM HOUSE, 5398/70, REGARPURA, KAROL BAGH, NEW DELHI 110 005. PAN: ABUPB 0115A VS. THE INCOME TAX OFFICER, WARD 38(1), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY : SHRI UMESH THAKUR, FCA RESPONDENT BY : SHRI S.K. JAIN, SR.DR DATE OF HEARING : 15.09.2016 DATE OF PRONOUNCEMENT : 21.09.2016 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAIN ST THE ORDER OF CIT(APPEALS)-13, NEW DELHI DATED 11.09.2015 INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E LD. CIT(A) AND ASSESSING OFFICER ARE NOT JUSTIFIED IN P ASSING EX PARTY ORDER WITHOUT GIVING THE PROPER OPPORTUNITY TO ASSE SSEE FOR PRESENTING THE FACTS OF THE CASE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) IS NOT JUSTIFIED IN CONFORMING THE ESTIMATIO N OF BUSINESS INCOME OF THE ASSESSEE AT RS. 3000000/- AS AGAINST THE BUSINESS INCOME OF RS. 511489/- DECLARED BY THE ASSESSEE. AC TION OF THE ITA NO.1547/DEL/2016 PAGE 2 OF 4 LD. CIT(A) OF DISMISSING THE APPEAL ON THIS GROUND WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND WIT HOUT GIVING THE ASSESSEE PROPER OPPORTUNITY IS HIGHLY UNJUSTIFIED A ND UNCALLED FOR. 3. THAT ON FACTS AND CIRCUMSTANCES LD. CIT(A) IS NOT JUSTIFIED IN DISALLOWING THE DEDUCTION UNDER CHAPTE R VIA OF RS. 94346/-. DEDUCTION HAS BEEN CLAIMED U/S 80C AND 80D OF THE ACT ON THE BASIS OF INVESTMENT MADE BY THE ASSESSEE IN ELIGIBLE SCHEMES AND IS FULLY ALLOWABLE. DISALLOWANCE OF RS. 94346/- MADE IS HIGHLY UNJUSTIFIED, BAD IN LAW AND UNCALLED FOR. 4. ASSESSEE CRAVES LEAVE TO ADD, AMEND, ALTER OR WIT HDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF THE HEARING. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS INVITED MY ATTENTION TO THE FACT THAT THE ASSESSING OFFICER HAS FRAMED THE ASSESSMENT U/S. 144 OF THE ACT, AGAINST WHICH AN AP PEAL WAS FILED BEFORE THE CIT(APPEALS), BUT NO NOTICE OF HEARING WAS RECE IVED BY THE ASSESSEE AND THE CIT(APPEALS) HAS DISPOSED OF THE APPEAL EX PARTE AGAINST THE ASSESSEE WITHOUT DEALING WITH THE ISSUES ON MERIT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT THE CIT(APPEALS) IS REQUIRED TO ADJUDICATE THE ISSUES ON MERIT, EVEN IF NONE APPEARED ON BEHAL F OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER S HOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER, AS HE HAS ALSO F RAMED THE ASSESSMENT EX PARTE . 3. THE LD. DR PLACED RELIANCE UPON THE ORDER OF CIT (APPEALS). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS AND ON PERUSAL OF THE RECORD, I FIND THAT UNDISPUTEDLY ITA NO.1547/DEL/2016 PAGE 3 OF 4 THE AO HAS COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT. THE CIT(APPEALS) HAS ALSO DISPOSED OF THE APPEAL EX PARTE WITHOUT SERVING A NOTICE OF HEARING UPON THE ASSESSEE. IN HIS ENTIRE ORDER, THE CIT(APPEALS) HAS NOT GIVEN ANY SPECIFIC FINDING WITH REGARD TO S ERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THEREFORE, IT APPEARS THAT THE CIT(APPEALS) HAS DISPOSED OF THE APPEAL WITHOUT AFFORDING PROPER OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE, WHEREAS HE IS REQUIRED TO DISPOSE OF THE APPEAL ON MERITS, EVEN IF NONE APPEARED ON BEHALF OF THE ASSESSEE. I N THESE CIRCUMSTANCES, I AM OF THE VIEW THAT THE MATTER BE SENT BACK TO TH E CIT(APPEALS) TO ADJUDICATE THE ALL THE ISSUES ON MERIT, AFTER AFFOR DING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF SEPTEMBER 2016. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER NEW DELHI, DATED, THE 21 ST SEPTEMBER, 2016. /D S/ ITA NO.1547/DEL/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR, ITAT, NEW DELHI.