Rakesh Jain, New Delhi V. ITO, New Delhi

ITA 1833/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4143 (ITAT-DELHI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 27-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1833/DEL/2016 (ASSESSMENT YEAR-2011-12) RAKESH JAIN, 999, PAN MANDI, SADAR BAZAR, NEW DELHI-110006. PAN-AAGPJ7090P ( APPELLANT) VS ITO, WARD-39(3), NEW DELHI. (RESPONDENT) ASSESSEE BY SH.SANJAY ISSAR, CA REVENUE BY NONE DATE OF HEARING 27 .09.2016 DATE OF PRONOUNCEMENT 07 .1 2 .2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 23.02.2016 OF THE CIT(A)-20, NEW DELHI PERTAINING TO 2011-12 ON VARIOUS GROUND IN SUSTAINING THE ADDITIONS MADE BY THE AO W ITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 2. AT THE TIME OF HEARING, AN ADJOURNMENT WAS MOVED ON BEHALF OF THE REVENUE. IT IS WORTH NOTING THAT IN ALMOST ALL APPEALS FIXED FOR H EARING ON 27.09.2016, THE REVENUE HAS MOVED AN ADJOURNMENT ON THE GROUND THAT LD.SR.DR IS ON LEAVE. ON 26.09.2016 ALSO THE POSITION REMAINED THE SAME, ACCORDINGLY CONSIDERING THE MATERIAL ON RECORD AND AFTER HEARING THE LD. AR THE ADJOURNMENT REQUEST WAS REJE CTED AND THE ISSUES WERE CONSIDERED ON MERIT. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEES CASE WAS SELECTED FOR SCRUTINY BY THE AO SO AS TO EXAMINE THE CLAIM OF LOSS FROM T HE PARTNERSHIP FIRM. ACCORDINGLY AFTER VARIOUS OPPORTUNITIES WHEREIN THE ASSESSEE WAS REQU IRED TO EXPLAIN THE DEPOSIT OF CASH IN VIJAYA BANK ACCOUNT AND VERIFICATION OF EXPENSES CL AIMED AND SUBSTANTIATE BY WAY OF EVIDENCES THE SHORT TERM CAPITAL LOSS CLAIMED BY WA Y OF A SALE DEED AND SUPPORT THE DEDUCTION CLAIMED U/S 80C. IN THE ABSENCE OF SUPPO RTING EVIDENCES AND EXPLANATION THE DECLARED INCOME OF RS.4,71,426/-WAS ASSESSED AT AN INCOME OF RS.23,20,382/- BY AN ORDER I.T .A .NO.-1833/DEL/2016 PAGE 2 OF 3 PASSED BY THE AO U/S 144 OF THE INCOME TAX ACT, 19 61. THE ISSUE WAS CHALLENGED IN APPEAL BEFORE THE CIT(A) BEFORE WHOM ALSO DESPITE S EEKING OPPORTUNITY THE ASSESSEE FAILED TO APPEAR. 4. IN THE SAID BACKGROUND, LD.AR SH.SANJAY ISSAR, C A APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT AN EX-PARTE ORDER HAS BEEN PASSED BY THE CIT(A) AS DUE TO REASONS BEYOND THE CONTROL OF THE ASSESSEE, HE COU LD NOT PARTICIPATE IN THE PROCEEDINGS. THE REASONS FOR NON-PARTICIPATION WERE EXPLAINED TO BE EXTREME FINANCIAL PROBLEMS WHICH THE ASSESSEE WAS UNDERGOING AT THE RELEVANT POINTS OF TIME. AS A RESULT OF THIS, IT WAS SUBMITTED THAT DESPITE SEEKING OPPORTUNITIES, THE A SSESSEE COULD NOT MAKE EFFECTIVE COMPLIANCE AND VIRTUALLY REMAINED UNREPRESENTED. I T WAS HIS SUBMISSION THAT FOR THE VERY SAME REASONS EVEN BEFORE THE AO, THE ASSESSEE COULD NOT PARTICIPATE IN THE PROCEEDINGS AND THE ASSESSMENT ORDER WAS PASSED U/S 144. ELABO RATING THE FINANCIAL PROBLEMS IT WAS SUBMITTED IT CAN BE UNDERSTOOD FROM THE FACT THAT T HE ASSESSEE HAD TO SELL HIS PROPERTY ETC AND NOW AFTER OVERCOMING HIS FINANCIAL PROBLEMS, TH E ASSESSEE ONLY SEEKS AN OPPORTUNITY OF BEING HEARD. CONSIDERING THE REQUEST OF THE LD .AR ON BEHALF OF THE ASSESSEE IN THE CONTEXT OF THE GROUNDS RAISED AND THE MATERIAL AVAI LABLE ON RECORD, I AM OF THE VIEW THAT JUSTICE DEMANDS THAT THE ASSESSEE BE GRANTED AN EFF ECTIVE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND TH E ISSUES ARE RESTORED BACK TO THE CIT(A) DIRECTING THE ASSESSEE TO ENSURE FULL AND PROPER PA RTICIPATION BEFORE THE SAID AUTHORITY. THE LD.AR, SH. SANJAY ISSAR, CA APPEARING ON BEHALF OF THE ASSESSEE GAVE HIS ORAL UNDERTAKING THAT THE OPPORTUNITY PROVIDED SHALL NOT ABUSED. IT WAS MADE CLEAR TO THE LD.AR THAT ON THE FAILURE TO UTILIZE THE OPPORTUNITY TO P LACE FULL FACTS ON RECORD, THE CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD.. ACCORDINGLY, IN VIEW OF THE ABOVE REJECTING THE DEP ARTMENTAL REQUEST FOR TIME, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. I.T .A .NO.-1833/DEL/2016 PAGE 3 OF 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 TH OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI