Three C Properties Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 1702/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1001 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: VISHAL CHANDRA GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER AN D SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1702/DEL./2017, A.Y. 2012-13 THREE C PROPERTIES PVT. LTD. VS. D CIT, D-107, PANCHSHEEL ENC. CIRC LE-25(1) NEW DELHI NEW DELHI PAN : AADCT5315R (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VISHAL CHANDRA GUPTA, CA REVENUE BY : SHRI S.S.RANA, CIT(DR) DATE OF HEARING : 03.12.2019 DATE OF ORDER : 17.12.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT THREE C PROPERTIES PVT. LTD., NE W DELHI (HEREINAFTER REFERRED TO AS 'THE ASSESSEE) BY FILI NG THE AFORESAID APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 20/01/2017 PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEALS)-9 , NEW ITA NO. 1702/DEL./2017 2 DELHI QUA THE ASSESSMENT YEAR 2012-13 ON THE GROU NDS INTER ALIA THAT : THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LD. CIT(A) ERRED IN DISPOSING OF APPEAL O N NON-MERIT BY DISMISSING IT FOR NON-APPEARANCE/ NON-COMPLIANCE WHEREAS APPELLANT HAVE BEEN DULY EXPLAINED AND ARGUED IN RE SPECT OF ALL GROUNDS RAISED BEFORE THE LD. CIT(A) IN WRITTEN SUB MISSION. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE LD. CIT(A), ERRED IN LAW IN NOT DISPOSING OF APPEAL AS PER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT AND DISMISSED THE APPEAL MERELY DUE TO NON-APPEARANCE/ NON- COMPLIANCE OF THE APPELLANT, WHICH IS UNJUSTIFIED, UNLAWFUL AND UNSUSTAINABLE ACT IN LAW AND GROSS VIOLATION OF PRI NCIPLE OF NATURAL JUSTICE. WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL NO. 1 TO 2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE LD. CIT(A) ERRED BOTH IN FACTS AND IN LAW IN CONFIRMING ADDITION OF RS. 3,45,76,123/- ON ACCOUNT OF DISALLOWANCE OF EXPENDITURE DEBITED IN THE PROFIT & LOSS ACCOUNT WITHOUT APPRECIATING THE SUBMISSION ALONG W ITH SUPPORTING EVIDENCES FURNISHED BY THE APPELLANT IN SUPPORT OF SAID EXPENSES CLAIMED. THAT THE APPELLANT CRAVES LE AVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE: THE ASSESSEE IS ENGAGED I N THE BUSINESS OF REAL ESTATE DEVELOPMENT, ASSESSEE FILED RETURN OF I NCOME DECLARING ITA NO. 1702/DEL./2017 3 TOTAL LOSS OF RS. 3,45,76,123/- DURING THE YEAR UND ER ASSESSMENT. AO NOTICED THAT THE ASSESSEE HAS CLAIMED OTHER EXPENSE S TO THE TUNE OF RS. 3,46,01,452/- AND MAJOR PART OF THE CLAIM IS ON ACCOUNT OF ADVERTISEMENT EXPENSES OF RS. 3.39 CRORE AND CONSUL TANCY FEES OF RS. 5.41 CRORE. DECLINING THE CONTENTION RAISED BY THE ASSESSEE THAT THE EXPENSES HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS AO PROCEEDED TO DISALLOW THE CLAIM OF EXPENSES AND LOS S OF CURRENT YEAR TO THE TUNE OF RS. 3,45,76,123/-. 3. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WH O HAS CONFIRMED THE ASSESSMENT FRAMED BY AO BY DISMISSING THE APPEAL. FEELING AGGRIEVED THE ASSESSEE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. DR, GONE THROUGH THE DOCUM ENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHOR ITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CAS E. 5. AT THE VERY OUTSET IT IS BROUGHT TO OUR NOTICE B Y THE LD. AR FOR THE ASSESSEE THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER AT THE BACK OF ASSESSEE BY NOT PROVIDING ADEQUATE O PPORTUNITY OF BEING HEARD AND REQUESTED FOR PROVIDING ONE OPPORTU NITY TO THE ASSESSEE TO PUT FORTH ITS CASE. ITA NO. 1702/DEL./2017 4 6. PERUSAL OF THE IMPUGNED ORDER PASSED BY LD. CIT( A) PARTICULARLY PARA 2 GOES TO PROVE THAT NUMEROUS OPP ORTUNITIES WERE GIVEN TO THE ASSESSEE TO PROVE ITS CASE BUT ULTIMAT ELY DUE TO NON- PROSECUTION OF APPEAL BY THE ASSESSEE THE CASE WAS DECIDED EX PARTE. 7. THE LD. AR FOR THE ASSESSEE FURTHER CONTENDED TH AT THE ASSESSEE HAS ENGAGED A TAX PRACTIONER TO ARGUE THE APPEAL BUT FOR THE REASON BEST KNOWN TO HIM, HE DID NOT APPEAR AN D AS SUCH ASSESSEE WAS NOT AT FAULT. NO DOUBT, THE CASE WAS A DJOURNED AT THE REQUEST OF THE AUTHORISED REPRESENTATIVE OF THE A SSESSEE THRICE BUT ULTIMATELY NONE APPEARED ON ITS BEHALF. IN THE INTE REST OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE ENTIRE CAS E IS BASED UPON THE FACTUAL EVIDENCE WHICH HAS NOT COME ON RECORD D UE TO NON- APPEARANCE OF THE ASSESSEE, THE ISSUE IS REQUIRED T O BE DECIDED ONCE FOR ALL BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY, WE REMIT THE CASE BACK TO T HE LD. CIT(A) ITA NO. 1702/DEL./2017 5 TO DECIDE AFRESH AFTER PROVIDING OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 8. CONSEQUENTLY, APPEAL FILED BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THIS 17 TH DECEMBER, 2019. SD/- SD/- (R.K.PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER D ATED :17/12/ 2019 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-19, NEW DELHI. 5. CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI DATE OF DICTATION 4/12/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06/12/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ITA NO. 1702/DEL./2017 6 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER