Deepak Jain, New Delhi V. ITO ward 35(2), New Delhi

ITA 1635/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9641 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Assessee Lawyers: SHYAM KISHAN SARAF
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 143(3); 274; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 1635/DEL/2019 ASSESSMENT YEAR: 2014-15 DEEPAK JAIN, VS. ITO, WARD 35(2) S-130, FF, GREATER KAILASH NEW DELHI PART-I, NEW DELHI -48 (PAN: AANPJ2780P) ( ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. SHYAM KISHAN SARAF, CA REVENUE BY : MS. EKTA VISHNOI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 12.10.2018 PASSED BY THE LD. CIT(A)-12, NEW DELHI RELATING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- 1. THAT PENALTY HAS BEEN LEVIED WITHOUT JURISDICTIO N. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E EASE, PENALTY LEVIED U/S 271(1)(C) BY THE ASSESSING OFFICER IN UTTER DISREGARD OF THE PRINCIPLES OF NAT URAL JUSTICE IS UNJUSTIFIED, ILLEGAL, ERRONEOUS AND NEED S TO BE SUMMARILY DELETED. 3. THAT NOTICE U/S 274 READ WITH SECTION 271 DATED 22.12.2016 IS ITSELF VAGUE & ANY PENALTY LEVIED ON SUCH NOTICE IS VOID AB INITIO. 4. THAT NO NOTICE (FINAL PENALTY SHOW CAUSE NOTICE) DATED 19.06.2017 ON WHICH PENALTY HAS BEEN LEVIED W AS SERVED UPON THE APPELLANT. 5. THAT THE AO BASED HIS SATISFACTION FOR LEVYING TH E PENALTY ON THE BASIS OF HIS OWN SURMISES AND CONJECTURES BY TREATING BONAFIDE OMISSION BY THE APPELLANT AS CONCEALMENT OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME. 6. THAT PENALTY WAS LEVIED UJS 271(1)(C) IN RESPECT OF ORDER PASSED BY LD. AO U/S 143(3) WHEN APPELLANT DID NOT RECEIVE MANDATORY NOTICE UJS 143(2) WITHOUT WHI CH ASSESSMENT PROCEEDINGS ARE VOID AB-INITIO. 2 7. THAT AO LEVIED PENALTY UJS 271(1)(C) DESPITE ACKNOWLEDGING THE FACT THAT NO ADDITION WAS MADE BY THE LD AO IN HIS ORDER UJS 143(3). 8. THAT THE ORDERS OF PENALTY ARE BAD IN LAW AND SAME HAVE BEEN WRONGLY AND ILLEGALLY MADE BY APPLYI NG SECTION 271(1)(C) IN GROSS CONTRAVENTION TO LAID DO WN LAWS OF THE LAND. 9. THAT THE LD AO IN UTTER DISREGARD TO THE PRINCIPL E OF JUDICIAL DISCIPLINE LAID DOWN BY THE SUPREME COU RT AND VARIOUS HIGH COURT TRIED TO DISTINGUISH THE BIN DING EASE LAWS OF JURISDICTIONAL ITAT ON UNTENABLE GROUND S. 10. THAT THE LD. AO DID NOT WILFULLY GRANT ANY OPPORTUNITY TO THE APPELLANT TO REBUT THE IRRELEVAN T CASE LAWS RELIED UPON BY HIM AND PROCEEDED TO LEVY THE PENALTY. 11. THAT CIT (APPEALS)-12 HAS ERRED IN FACTS AND LA W IN CONFIRMING THE ILLEGAL ORDERS OF THE ASSESSING OF FICER. 12. THAT THE AFORESAID GROUNDS OF APPEAL ARE WITHOU T PREJUDICE TO ONE ANOTHER. 13. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GRO UNDS STATED HERE IN ABOVE EITHER BEFORE OR AT THE TIME O F HEARING OF THIS APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING THE CLAIM TO THE ASSESSEE AND PASSE D THE EXPARTE ORDER WITHOUT HEARING THE ASSESSEE. HE FURTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESEE. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRES H, AS PER LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES. 3 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE ORDERS OF THE REVENUE. NO DOUBT THAT THE ASSES SEE REMAINED NON- COOPERATIVE BEFORE THE LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE UNDERTAKES TO APPEAR BEFORE THE LD. CIT(A) AND WILL COOPERATE IN SPEEDY DISPOSAL OF THE APPEAL AS WELL AS NOT SEEK ANY UN NECESSARY ADJOURNMENT BEFORE THE LD. CIT(A). IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR HEARING O N 13.01.2020 AT 10.00 AM WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AF TER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . IT IS MADE CLEAR THAT NO NOTICE FOR HEARING WILL BE ISSUED BY THE LD . CIT(A). ASSESSEE IS ALSO DIRECTED THROUGH ITS COUNSEL TO APPEAR BEFORE THE LD. CIT(A) ON 13.01.2020 AT 10.00 AM FOR HEARING TO SUBSTANTIATE ITS CASE AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT IN THE CASE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 03/10/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 03/10/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES