Mr. Pawan Kumar Yadav, Delhi V. ITO, New Delhi

ITA 158/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7836 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 15-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 12-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Principle of natural justice
• Section: 144

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.-158/DEL /2016 (ASSESSMENT YEAR-2007-08) PAWAN KUMAR YADAV, 243A, SARAI PEEPAL THALIA, ADARSH NAGAR, DELHI-110033. PAN-AAAPY5986F (APPELLANT) VS ITO, WARD-34(4), NEW DELHI (RESPONDENT) A SSESSEE BY SH.AMOL S I NHA, ADV. R EVENUE BY SH. K.K.JAISWAL, DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 17.11.2015 OF CIT(A)-12, NEW DELHI PERTAINING TO 200708 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO. 4 AND 5 WHICH READ AS UNDER:- 4. THAT THE EX-PARTE ORDER PASSED BY THE ASSESSING AUTHORITY IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AS NO NOT ICE FOR THE FIXATION OF CASE WAS EVEN SERVED TO THE ASSESSEE AND HE WAS PRE VENTED TO THE SUFFICIENT CAUSE TO COMPLY THE CASE AND FILE THE NE CESSARY DOCUMENTS OF SCRUTINY CASE AND THERE IS DIFFERENCE BETWEEN TH E ISSUANCE AND SERVICE OF THE NOTICE. 5. THAT THE ASSESSING AUTHORITY WHILE PASSING THE A SSESSMENT ORDER HAS NOT PASSED THE BEST JUDGEMENT ORDER AS THE ASSE SSING AUTHORITY FAILED TO CONSIDER THE MATERIAL ADDUCED AND AVAILAB LE ON THE RECORD & TAKEN THE CASH DEPOSIT IN THE BANK WAS THE INCOME OF THE ASSESSEE FOR THE YEAR AND EVEN NO REASONABLE AND PR OPER OPPORTUNITY HAS BEEN PROVIDED PRIOR TO THE ADDITION OF RS.1065050/- IN THE DECLARED INCOME. DATE OF HEARING 17.03.2016 DATE OF PRONOUNCEMENT 03.05.2016 I.T.A .NO.-158/DEL/2016 PAGE 2 OF 3 2. THE LD. AR MADE A PRAYER THAT INADVERTENTLY IN T HE GROUNDS MENTIONED REFERENCE HAS BEEN MADE TO THE ASSESSING OFFICER WH EREAS THE SAME SHOULD BE READ AS CIT(A) AS THE GRIEVANCE IS POSED TO THE ORDER OF THE CIT(A). INVITING ATTENTION TO THE IMPUGNED ORDER PAGE 2, IT WAS HIS SUBMISSION TH AT BEFORE THE CIT(A), GROUNDS NO. 4 AND 5 WERE RAISED SPECIFICALLY ASSAILING THE CORRECTNESS OF THE ORDER OF THE ASSESSING OFFICER ASSAILING THAT NO NOTICE FOR FIX ING THE CASE FOR HEARING WAS SERVED UPON THE ASSESSEE AND ON ACCOUNT OF THIS FACT COMPL IANCE COULD NOT BE MADE. WHILE ARRIVING AT THE CONCLUSION IN PARA 10.6 IT WA S SUBMITTED THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE AFFIDAVIT FIL ED BY THE ASSESSEE [COPY OF WHICH IS PLACED AT PAPER BOOK PAGE NO. 10 AND 11]. REFERENCE TO THIS FACT IT WAS SUBMITTED IS MADE BY THE CIT(A) AT PAGE 5 IN PARA 8.1 THAT AN AF FIDAVIT HAS BEEN FILED AS ANNEXURE A:- 1. THAT THE EX-PARTE ORDER U/S 144 WAS FRAMED VIDE OR DER DATED 29.12.2009 WHICH WAS RECEIVED BY THE ASSESSEE ON 30 .03.2010 ON THE GROUND THAT NONE APPEARED ON 05.06.2009, 17.11.2009 & 09.12.2009 AND NONE OF THE NOTICES WAS RECEIVED BY THE ASSESSE E AND THE MEMBER OF THE FAMILY. IN THIS CONNECTION, I AM FIL ING THE AFFIDAVIT STATING THAT NO NOTICE FOR THE FIXATION O F CASE WAS RECEIVED & SERVED TO THE ASSESSEE FOR WHICH THE AFF IDAVIT IS ENCLOSED HEREWITH AT ANNEXURE-A. (EMPHASIS PROVIDED) 2.1. IN THE FACTS OF THE PRESENT CASE IT WAS SUBMIT TED THAT AS THE ASSESSMENT ORDER IS PASSED UNDER SECTION 144 ACCORDINGLY FRESH EVIDE NCE WAS SOUGHT TO BE PLACED BEFORE THE CIT(A). THE SAID EVIDENCE WAS NOT TAKEN ON RECORD (COPY OF THIS APPLICATION MOVED IS PLACED AT PAGES 4 AND 5 OF THE PAPER BOOK FILED). ACCORDINGLY IT WAS HIS LIMITED PRAYER THAT THE ISSUE SHOULD BE RES TORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW, CONSIDERING THE AFFIDAVIT FILED IT WAS SUBMITTED THAT IN THE EV ENTUALITY, THE PRAYER OF THE ASSESSEE I.T.A .NO.-158/DEL/2016 PAGE 3 OF 3 WAS NOT TO BE ALLOWED THEN FRESH EVIDENCE MAY BE DI RECTED TO BE TAKEN ON RECORD AND AN ORDER PASSED IN ACCORDANCE WITH LAW TAKING T HE NECESSARY EVIDENCES INTO CONSIDERATION. THE LD. SR. DR CONSIDERING THE MATER IAL AVAILABLE ON RECORD IN THE CONTEXT OF THE FACT THAT THE AFFIDAVIT WAS PLACED B EFORE THE CIT(A) WHICH ADMITTEDLY HAS NOT BEEN DISCUSSED AND THE FINDING ARRIVED AT I S WITHOUT DISCUSSION ON THIS MATERIAL FACT, HAD NO OBJECTION IF THE ISSUES ARE R ESTORED BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE SPECIFIC GR IEVANCES OF THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE FACTS AVAILABLE ON REC ORD AND THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, WE FIND THAT IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE LD.CIT(A) DIRECTING THE SAID AUTHORITY TO ADDRESS THE SPECIFIC GRIEVANCES POSED. NEEDLESS TO SAY THAT THE LD. CIT(A) SHALL P ASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO E NSURE EFFECTIVE COMPLIANCE AND NOT TO ABUSE THE OPPORTUNITY SO PROVIDED. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 OF MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR ITAT NEW DELHI