Vinay Pal, Noida V. ITO ward-2(5), Noida

ITA 1790/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4461 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: DINESH MALHOTRA
• Keywords: Principle of natural justice; Set aside
• Section: 54

Judgement Text

1 ITA NO. 1790/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2 ) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 1790/DEL/2019 ( A.Y 2009-10) VINAY PAL 206-207, ANSAL SATYAM, RDC, GHAZIABAD, UTTAR PRADESH PIN: 201002 PAN: ALCPP2744D (APPELLANT) VS ITO WARD-2(5) NOIDA, UTTAR PTRADESH PIN: 201001 (RESPONDENT) APPELLANT BY SH. DINESH MALHOTRA, ADV RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 28/09/2018, PASSED BY CIT(A)-1, NOIDA, UTTAR PRADESH FOR ASSESS MENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. BECAUSE, ID. CIT (APPEALS) GROSSLY ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN DISMISSING THE APP EAL IN EX-PARTY WITHOUT PROVIDING ANY PROPER OPPORTUNITY OF BEING H EARD IN AS MUCH ONLY ADJOURNMENT REJECTED BEHIND THE BACK OF ASSESS EE AND EX-PARTY ORDER SENT TO ASSESSEE AFTER MORE THAN 3 MONTHS. 2. BECAUSE, ID. CIT (APPEALS) IS TOTALLY WRONG IN H OLDING THAT, ASSESSEE HAS NOT PAID APPEAL FEE IN TERMS OF S.249(L)(A) AND HENCE IS SAME IS NOT DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 26.02.2020 2 ITA NO. 1790/DEL/2019 MAINTAINABLE AND NOT ADMITTED, WHILE APPEAL FEE IS DULY PAID ON 25.01.2017 AND WHICH IS STILL ON THE SITE OF DEPTT. , HENCE ORDER IS INHERENTLY ILLEGAL. 3. BECAUSE, ID. CIT(A) FURTHER ERRED IN COMMENTING ADVERSELY ON THE GROUNDS AND REJECTING THE SAME UNILATERALLY WITHOUT ANY OPPORTUNITY/ENQUIRY ETC. EVEN AFTER NOT ADMITTING T HE APPEAL. 4. THEREFORE, IT IS VERY RESPECTFULLY PRAYED THAT T HIS COURT MAY KINDLY BE PLEASED TO SET ASIDE THE ORDER UNDER QUESTION WITH THE DIRECTION DEEMED FIT TO CIT(A) TO HEAR MATTER ON MERITS. 3. THE ASSESSEE SOLD A PLOT OF LAND SITUATED AT NOI DA DURING THE ASSESSMENT YEAR 2009-10 FOR RS. 47,00,000/-. THE SALE PROCEED S WAS UTILIZED IN PURCHASING A RESIDENTIAL HOUSE BY THE ASSESSEE. TH E ASSESSEE FILED INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2009-10 ON 25/3/2010 , BUT DID NOT DISCLOSE THE SALE OF PROPERTY ASSUMING THAT SINCE THE TRANSA CTION IS EXEMPT FROM TAX U/S 54 OF THE INCOME TAX ACT, 1961. THE ASSESSING OFFI CER MADE ADDITION OF RS.35,22,888/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GIV EN THE APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO REPRESEN T HIS CASE AND THE DOCUMENTS/EVIDENCE WHICH WAS SUBMITTED BEFORE THE A SSESSING OFFICER WAS NOT AT ALL TAKEN INTO ACCOUNT BY ASSESSING OFFICER AS WELL AS BY THE CIT(A). THE LD. AR FURTHER SUBMITTED THAT THE CIT(A) SIMPLY OBSERVE D THAT IF THE ASSESSEE DOES NOT CLAIM FOR EXEMPTION U/S 54, THE ASSESSING OFFIC ER /REVENUE IS NOT BOUND TO GRANT THE SAME. 3 ITA NO. 1790/DEL/2019 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE CIT(A) HA S NOT GIVEN ANY CATEGORICALLY FINDING ON MERIT OF THE CASE AND ALSO DID NOT GIVE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE CIT(A) WAS NOT RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT GIVING PROPER OPPORT UNITY OF HEARING. HENCE, WE ARE REMANDING BACK THE ENTIRE ISSUE TO THE FILE OF THE CIT(A) TO BE DECIDED ON MERIT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPO RTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH FEBRUARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 26/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. 1790/DEL/2019 DATE OF DICTATION 24.0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.0 2 .2020 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 2 6 .0 2 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 6 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 6 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER