Manystreams Softwares (I) Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 1550/DEL/2011

• Counselvise Citation: 155020114 RSA 2011
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 29-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RA J TANDON
• Assessee Lawyers: SUMIT KANWAR
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER ITA NO.1550/DEL/2011 ASSESSMENT YEAR: 2005-06 MANYSTREAMS SOFTWARES (I) PVT. LTD., VS. DEPUTY COM MISSIONER OF IT, W-111/18, LANE NO.6, CIRCLE 6(1), ANUPAM GARDENS, SAKET, NEW DELHI. NEW DELHI. (PAN: AADCM8145Q) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SUMIT KANWAR, CA RESPONDENT BY: SHRI RAJ TANDON, CIT(DR) ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 08.11.2010 PASSED FOR ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS TAKEN SIX GROUNDS APPEAL. IN GROUND NO .1, IT IS IMPUGNING THE ADDITION OF RS.74,40,222 WHICH HAS BEEN ADDED BY TH E ASSESSING OFFICER BY DISALLOWING THE CREDIT OF WORK IN PROGRESS. IN GROU ND NO.2, THE ASSESSEE IS IMPUGNING ADDITION OF RS.6,21,205 WHICH WAS ADDED B Y THE ASSESSING OFFICER BY MAKING A DISALLOWANCE OF SECURITY DEPOSI TS MADE BY THE ASSESSEE. IN GROUND NOS. 3 TO 6, ASSESSEE HAS TAKEN GENERAL G ROUNDS OF APPEAL WHEREIN IT HAS PLEADED THAT LEARNED CIT(APPEALS) HAS ERRED IN DECIDING THE APPEAL EX PARTE. IT HAS CHALLENGED THE VIOLATION OF PRINCIPLE S OF NATURAL JUSTICE ETC. THE 2 LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT THE LEARNED CIT(APPEALS) HAS DISMISSED THE APPEAL OF ASSESSEE F OR WANT OF PROSECUTION AND HAS NOT DECIDED IT ON MERIT. HE PRAYED THAT THE ORDER OF THE LEARNED CIT(APPEALS) BE SET ASIDE AND THE ISSUES BE RESTORE D TO THE FILE OF THE LEARNED FIRST APPELLATE AUTHORITY. LEARNED DR ON TH E OTHER HAND SUBMITTED THAT THE LEARNED CIT(APPEALS) HAS GRANTED 31 OPPORT UNITIES TO THE ASSESSEE. IT COULD NOT AVAIL THOSE OPPORTUNITIES AND APPLIED FOR ADJOURNMENT. UNDER THE COMPELLING CIRCUMSTANCES, LEARNED CIT(APPEALS) HAS DECIDED THE APPEAL EX PARTE. LEARNED CIT(APPEALS) HAS ADJUDICATED THE ISS UES ON THE BASIS OF MATERIAL AVAILABLE TO HER. THEREFORE, ACCORDING TO THE LEARNED DR, IT IS A DECISION ON MERIT. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. FROM PERUSAL OF THE LEARNED CIT(A PPEALS)S ORDER, IT REVEALED THAT APPEAL WAS LISTED ON A NUMBER OF OCCA SIONS FOR HEARING BUT THE HEARING WAS ADJOURNED ON THE REQUEST OF THE ASSESSE E. ULTIMATELY, LEARNED FIRST APPELLATE AUTHORITY PROCEEDS TO DISPOSE OF TH E APPEAL EX PARTE. HOWEVER, WHILE DOING SO, LEARNED FIRST APPELLATE AU THORITY HAS NOT ADJUDICATED THE ISSUES ON MERIT. SHE TOOK INTO CONS IDERATION THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND THE FINDINGS OF THE ASSESSING OFFICER. THEREAFTER, SHE MADE A REFERENCE TO THE DECISION OF HON'BLE MADHAYA 3 PRADESH HIGH COURT IN THE CASE OF LATE TUKKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480 WHEREIN HON'BLE HIGH COURT DISMISSED THE REFERENCE FOR WANT OF PROSECUTION. LEARNED CIT(APPEALS) FURTHER M ADE A REFERENCE TO THE CASE OF LEARNED CIT(APPEALS) VS. V.N. BHATTACHARGEE REPORTED IN 118 ITR 461. THUS, ACCORDING TO THE LEARNED CIT(APPEALS), I F ASSESSEE DOES NOT WANT TO PURSUE HIS APPEAL THEN SUCH APPEAL DESERVES TO B E DISMISSED. SUB-SECTION (6) OF SEC. 250, HOWEVER, DOES CONCUR WITH THE VIEW POINT OF THE LEARNED CIT(APPEALS). IT CONTEMPLATES THAT LEARNED FIRST AP PELLATE AUTHORITY WHILE DISPOSING OF THE APPEAL SHALL STATE THE POINTS FOR DETERMINATION IN WRITING. THEREAFTER, SHE WILL RECORD THE REASONS OF HER DECI SION ON THOSE POINTS. IN THE PRESENT CASE, IT IS NOT DISCERNIBLE FROM THE ORDER THAT LEARNED FIRST APPELLATE AUTHORITY THAT SHE HAS CALLED FOR THE ASSESSMENT RE CORD AND THEREAFTER ADJUDICATE THE ISSUE ON MERIT. WE AGREE WITH THE SU BMISSIONS OF LEARNED DR TO SOME EXTENT THAT ASSESSEE WAS NEGLIGENT IN PROSE CUTING ITS APPEAL BUT ON THE OTHER HAND, LEARNED CIT(APPEALS) OUGHT TO HAVE DECIDED THE ISSUE ON MERIT. TAKING INTO CONSIDERATION ALL THESE ASPECTS, WE SET ASIDE THE ORDER OF LEARNED CIT(APPEALS) AND REMIT ALL THESE ISSUES TO THE FILE OF THE LEARNED CIT(APPEALS) FOR READJUDICATION. WE DIRECT THE ASSE SSEE NOT TO TAKE ANY UNNECESSARY ADJOURNMENT AND CO-OPERATE WITH THE LEA RNED CIT(APPEALS). IN 4 VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 16.09.201 1 SD/- SD/- ( G.E. VEERABHADRAPPA) ( RAJPAL YAD AV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 16/09/2011 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR