Sanjay Ghai, V. DCIT, Circle-1,

ITA 1805/DEL/2006

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3184 (ITAT-DELHI)
• Duration Of Justice: 11 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 16-05-2017
• Assessment Year: 1997-1998
• Appeal Filed On: 22-05-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - F NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS.1805, 1806/ DEL/2006 ASSESSMENT YEARS : 1997-98, 2000-0 1 SHRI SANJAY GHAI 2, GURU RAM RAI MARKET, DILARAM BAZAR, RAJPUR ROAD, DEHRADUN VS. DCIT CIRCLE-1 DEHRADUN (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER BOTH THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST D IFFERENT ORDERS OF LD. CIT(A) 1 DEHRADUN DATED 15 TH SEPTEMBER, 2004 FOR ASSESSMENT YEARS 1997-98 AND 2000-2001 CHALLENGING THE LEVY OF PENALTY U/S 271(1)(C) OF THE I.T. ACT. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL ON RECORD. 3. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT EARLIER BOTH THE APPEALS OF THE ASSESSEE WERE ALLOWED BY ITAT F BENCH, DEL HI VIDE ORDER DATED ASSESSEE BY : DR. RAKESH GUPTA & SHRI SOMIL AGRAWAL, ADVOCATE DEPARTMENT BY: SHRI F.R. MEENA, SR. DR DATE OF HEARING 16//05/2017 DATE OF PRONOUNCEMENT 25/05/2017 ITA NOS. 1805, 1806/DEL/2006 SHRI SANJAY GHAI VS. DCIT PAGE 2 OF 5 13 TH JULY, 2007. HE HAS SUBMITTED THAT THE APPEALS WERE DECIDED IN FAVOUR OF THE ASSESSEE BECAUSE THE ASSESSING OFFICE R FAILED TO RECORD SATISFACTION IN THE ORDER OF THE ASSESSMENT REGARDI NG CONCEALMENT BEFORE INITIATING PENALTY PROCEEDINGS. HE HAS SUBMITTED TH AT REVENUE DEPARTMENT PREFERRED APPEAL AGAINST THE ORDER OF TH E TRIBUNAL BEFORE HIGH COURT AND THE HON'BLE HIGH COURT SET ASIDE THE ORDER OF THE TRIBUNAL AND ALLOWED THE APPEALS OF THE REVENUE. HE HAS SUBMITTED THAT ASSESSEE PREFERRED CIVIL APPEAL NO. 11177-11178 OF 2013 BEFORE HONBLE SUPREME COURT AND APPEALS OF THE ASSESSEE HAVE BEEN DECIDED VIDE JUDGMENT DATED 17 TH DECEMBER, 20113. HE HAS SUBMITTED THAT ASSESSEE MADE A PRAYER BEFORE HON'BLE SUPREME COURT THAT IN THE EVENT WHILE SETTING ASIDE THE ORDER OF TRIBUNAL, THE HIGH COURT SHOULD HAVE REFERRED THE MATTER BACK TO THE TRIBUNAL TO DECIDE THE APPEA L OF THE ASSESSEE ON MERITS. HON'BLE SUPREME COURT MODIFIED THE ORDER OF THE HIGH COURT TO THE EFFECT THAT THE MATTER SHALL BE REMITTED TO THE TRIBUNAL FOR THE PURPOSE OF DECIDING THE SAME ON MERIT. THE ISSUE WI TH REGARD TO THE SATISFACTION STANDS FORECLOSED. THE APPEALS OF THE ASSESSEE WERE ACCORDINGLY ALLOWED. 4. IN VIEW OF THE ABOVE JUDGMENT OF THE HON'BLE SUP REME COURT, BOTH THE APPEALS HAVE BEEN RE-FIXED FOR HEARING AFR ESH ON MERITS. 5. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THOUGH T HE ASSESSEE DID NOT FILE APPEAL BEFORE LD. CIT(A) AGAINST THE ASSES SMENT ORDER WHEREBY ADDITIONS WERE MADE IN BOTH THE ASSESSMENT YEARS B UT THERE IS NO EVIDENCE ON RECORD TO PROVE ANY CONCEALMENT OF INCO ME OR FURNISHING OF ITA NOS. 1805, 1806/DEL/2006 SHRI SANJAY GHAI VS. DCIT PAGE 3 OF 5 INACCURATE PARTICULARS OF INCOME. HE HAS SUBMITTED THAT IN ASSESSMENT YEAR 2000-01 THE ASSESSING OFFICER MADE THE ADDITIO N ON WHICH PENALTY WAS LEVIED WITH REGARD TO THE SALE PRICE MENTIONED IN THE SALE DEED AND MARKET VALUE OF THE SHOP ON WHICH STAMP DUTY PAID / CIRCLE RATE. HE HAS SUBMITTED THAT THERE IS NO EVIDENCE ON RECORD TO PR OVE IF ASSESSEE RECEIVED ANY AMOUNT OVER AND ABOVE RECORDED IN THE SALE DEED. IN ASSESSMENT YEAR 1997-98, THE ASSESSING OFFICER MADE CERTAIN ADDITIONS ON ACCOUNT OF DISALLOWANCE OF THE EXPENSES. HE HAS FURTHER SUBMITTED THAT PENALTY HAS BEEN IMPOSED FOR FILING OF INACCUR ATE PARTICULARS OF INCOME. HOWEVER NOTHING IS EXPLAINED IN THE NOTICE AS TO FOR WHICH LIMB PENALTY HAS BEEN IMPOSED. HE HAS FILED COPY OF THE SHOW CAUSE NOTICE FOR ONE YEAR ONLY AND SUBMITTED THAT IT BEING AN OL D MATTER CERTAIN RECORDS ARE NOT AVAILABLE AT PRESENT. LD. COUNSEL F OR ASSESSEE VERY FAIRLY SUBMITTED THAT BOTH THE APPEALS OF THE ASSESSEE HAV E BEEN DECIDED BY LD. CIT(A) EX PARTE BECAUSE THERE WAS NO REPRESENTA TION FROM THE SIDE OF THE ASSESSEE BEFORE HIM. HE HAS THEREFORE SUBMIT TED THAT SINCE THE MERITS OF THE CLAIM OF ASSESSEE HAVE NOT BEEN ADJUD ICATED BY THE LD. CIT(A) IN THE IMPUGNED ORDERS, THEREFORE, MATTERS MAY BE REMANDED TO THE FILE OF LD. CIT(A) WITH DIRECTION TO RE -DECIDE BOTH THE APPEALS OF THE ASSESSEE ON MERITS AND ASSESSEE MAY BE GIVEN LIBERT Y TO MAKE ALL LEGAL AND FACTUAL SUBMISSIONS BEFORE LD. CIT(A). LD. DR I N VIEW OF THE ABOVE ALSO STATED THAT SINCE LD. CIT(A) DISMISSED THE APP EAL OF ASSESSEE EX PARTE , THEREFORE MATTERS MAY BE REMANDED TO THE F ILE OF LD. CIT(A) FOR ADJUDICATION ON MERITS. ITA NOS. 1805, 1806/DEL/2006 SHRI SANJAY GHAI VS. DCIT PAGE 4 OF 5 6. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE IN THE LIGHT OF SUBMISSIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES, WE ARE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION BEFORE LD. CIT(A) FOR DECIDING BOTH THE APPEALS OF ASSESSEE ON MERITS. WHATEVER CO NTENTIONS HAVE BEEN RAISED BY LD. COUNSEL FOR ASSESSEE ON MERITS A S WELL AS ON LEGAL ISSUES WERE NOT RAISED BEFORE LD. CIT(A). THE ORDER S OF LD. CIT(A) HAVE NOT DISCUSSED MERITS OF CASE AND NO REASONS FOR DEC ISION HAVE BEEN MENTIONED. THEREFORE, LD. COUNSEL FOR ASSESSEE AND LD. DR HAVE RIGHTLY CONTENDED THAT BOTH THE MATTERS MAY BE REMANDED TO THE FILE OF LD. CIT(A) FOR ADJUDICATION ON MERITS. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) DEHRADUN AND RES TORE BOTH THE APPEALS OF THE ASSESSEE TO THIS FILE WITH DIRECTION TO RE-DECIDE BOTH THE APPEALS OF THE ASSESSEE ON MERITS BY GIVING REASONA BLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE ASSESSING OFFICER. THE ASSESSEE IS AT LIBERTY TO RAISE ALL LE GAL AND FACTUAL SUBMISSIONS BEFORE LD. CIT(A) FOR DISPOSAL OF THE A PPEALS. 7. IN THE RESULT BOTH THE APPEALS OF ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) ( BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 25 . 5.2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT ITA NOS. 1805, 1806/DEL/2006 SHRI SANJAY GHAI VS. DCIT PAGE 5 OF 5 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR