M/s K.G. Finvest Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 157/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7825 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 15-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 12-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: SUMIT LAL CHANDAN
• Keywords: Unexplained cash credit
• Section: 234B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NO.-157/DEL /2016 (ASSESSMENT YEAR-2011-12) K.G.FINVEST PVT.LTD., C-5/14, LOWER GROUND FLOOR, VASANT KUNJ, NEW DELHI-110070. PAN-AAACK4032H (APPELLANT) VS ACIT, CENTRAL CIRCLE-13, NEW DELHI (RESPONDENT) A SSESSEE BY SH. SUMIT LAL CHANDAN, ADV. R EVENUE BY SH. K.K.JAISWAL, SR. DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED FOR 04/11/2015 OF CIT(A)- 23, NEW DELHI PERTAINING TO 2011 12 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS 1. ACTION OF CIT(A) IN NOT ALLOWING THE RELIEF FOR TH E ADDITION OF RS.1,41,326/- U/S 14A OF THE I.T.ACT R.W.R.8D OF I. T.RULES IS UNJUST, ILLEGAL, ARBITRARY AND AGAINST THE FACTS AND CIRCUM STANCES OF THE CASE. 2. ACTION OF CIT(A) IN NOT ALLOWING THE RELIEF FOR THE ADDITION OF RS.1,56,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE BANK ACCOUNT IS UNJUST, ILLEGAL, ARBITRARY AND AGAINST T HE FACTS AND CIRCUMSTANCES OF THE CASE. 3. ACTION OF CIT(A) IN NOT DELETING THE INTEREST OF RS .5512/- U/S 234A AND RS.31,237/- U/S 234B OF THE I.T.ACT IS UNJUST, ILLE GAL, ARBITRARY AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. ACTION OF CIT(A) IN PASSING AN EX-PARTE ORDER U/S 1 43(30 OF THE I.T.ACT WITHOUT GIVING A REASONABLE OPPORTUNITY OF BEING HE ARD ON ACCOUNT OF IS UNJUST, ILLEGAL, ARBITRARY AND AGAINST THE FACTS AN D CIRCUMSTANCES OF THE CASE. DATE OF HEARING 15.03.2016 DATE OF PRONOUNCEMENT 05.05.2016 I.T.A .NO.-157/DEL/2016 PAGE 2 OF 3 2. AT THE TIME OF HEARING, A PETITION WAS MOVED ON BEHALF OF THE ASSESSEE REQUESTING CONSOLIDATION ON THE GROUND THAT THE EA RLIER YEARS APPEALS ON IDENTICAL ISSUE ARE PENDING BEFORE DIFFERENT BENCHES. HOWEV ER, CONSIDERING GROUND NO. 4 RAISED BY THE ASSESSEE IN THE PRESENT PROCEEDINGS A ND CONSIDERING THE MATERIAL AVAILABLE ON RECORD THE SAID REQUEST WAS REJECTED. A PERUSAL OF THE RECORD SHOWS THAT AGAINST THE ADDITIONS MADE BY THE AO DURING THE ASS ESSMENT PROCEEDINGS THE ASSESSEE CAME IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. WHEREAS ON THE FIRST OCCASION, AN ADJOURNMENT WAS MOVED ON THE GROUND TH AT THE ARGUING COUNSEL WAS NOT IN A POSITION TO ARGUE ON ACCOUNT OF A LIGAMENT RUP TURE. ON THE NEXT OCCASION, AN ADJOURNMENT WAS MOVED. THEREAFTER ATTEMPTS WERE MAD E BY THE LD. AR TO INFORM THE ASSESSEE IN REGARD TO THE SUBSEQUENT DATE OF HEARIN G WHICH REMAINED UNCOMPLIED WITH. THEREAFTER THE ASSESSEE WAS REPRESENTED AGAIN BY THE LD. AR, MR. SUMIT LAL CHANDAN WHO STATED THAT THE NOTICE HAD NOT BEEN REC EIVED BY THE ASSESSEE. IT APPEARS ON THE RECORD THAT A CHANGE OF ADDRESS WAS INTIMATE D ON BEHALF OF THE ASSESSEE. SUBSEQUENT NOTICE SENT TO THE SAID ADDRESS WHICH AL SO REMAINED UNCOMPLIED WITH. 3. IN THE CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A). ON A CONSIDERATION OF THE IMPUGNED ORDER, WE FIND T HAT THE PROCEDURE ADOPTED BY THE CIT(A) IN DECIDING THE APPEAL AS REQUIRED BY THE ST ATUTE IS NOT FULFILLED. THE PROCEDURE WHICH THE COMMISSIONER (APPEALS) IS REQUIRED TO FOL LOW WHILE DECIDING THE APPEALS FILED BEFORE THE SAID AUTHORITY IS SET OUT IN SECTI ON 250 OF THE INCOME TAX ACT, 1961. A PERUSAL OF SUB-SECTION (6) OF SECTION 250 WOULD SHO W THAT THE FIRST APPELLATE AUTHORITY WHILE DISPOSING THE APPEAL IS REQUIRED TO MAKE OUT ITS ORDER IN WRITING SETTING OUT THE POINTS FOR DETERMINATION; THE DECISION THEREON AND THE REASON FOR THE DECISION. IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT AFTER HA VING ADDRESSED THE VARIOUS I.T.A .NO.-157/DEL/2016 PAGE 3 OF 3 ADJOURNMENTS SOUGHT ON BEHALF OF THE ASSESSEE, THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED HOLDING THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE APPEAL. THE SAID CONCLUSION DOES NOT MEET THE STATUTORY MANDATE. IN VIEW OF THIS PATENT AND OBVIOUS SHORTCOMING, WE DEEM IT APPROPRIATE TO SET ASIDE TH E IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTI ON TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 O F MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI