D M Infotech Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 1838/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91394 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 08-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Assessee Lawyers: AN IL BHIRDWAWS ACCOUNTANT
• Section: 142(1); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC -I, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1838/DEL./2014 : ASSTT. YEAR : 2009-10 D M INFOTECH PVT. LTD. C/O. BHUPESH KUMAR DHINGRA, F-6/5, BASEMENT, VASANT VIHAR NEW DELHI VS A.C.I.T., CENTRAL CIRCLE 17 NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AACCD5148F APPELLANT BY : SH. AN IL BHIRDWAWS, ACCOUNTANT RESPONDENT BY : SH. BHIM SI NGH, SR. DR DATE OF HEARING : 8.07.2015 DATE OF PRONOUNCEMENT : 08.07.2015 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31 ST JANUARY, 2014 OF THE LD. CIT(A)- II, NEW DELHI. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS AP PEAL RELATES TO THE SUSTENANCE OF ADDITION OF RS. 50,000/- MADE BY THE AO U/S 69 OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT). 3. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 20.10.2008, ACCORDINGLY A NOTICE U/S 142(1) OF THE ACT WAS ISSUED ON 6.4.2010 REQUIRING THE ASSESSEE TO ITA NO.1838/DEL/2014 2 FURNISH THE RETURN OF INCOME. IN RESPONSE THE ASSES SEE FURNISHED THE RETURN OF INCOME ON 7.6.2010 DECLARING A LOSS OF RS . 9,559/-. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT SOME DOCUMENTS WERE IMPOUNDED DURING THE COURS E OF SURVEY CONDUCTED IN THE PREMISES AT 604, PADMA TOWER-II, R AJENDRA PLACE, NEW DELHI AND THAT THE PAGE 80 OF ANNEXURE A-24, I MPOUNDED FROM THE ABOVE `PREMISES INCLUDED A CERTIFICATE DATED 28 TH SEPTEMBER, 2008 OF THE ASSESSEE STATING THAT IT HAD RECEIVED RS. 50 ,000/- AS ADVANCE FROM THAPER HOMES LTD. BUT THE SAID AMOUNT WAS NOT REFLECTED IN THE BANK STATEMENT. THE AO ASKED THE ASSESSEE TO EXPLAI N THE SAME. ACCORDING TO HIM, NO SATISFACTORY REPLY WAS FURNISH ED BY THE ASSESSEE. HE THEREFORE TREATED THE SAID AMOUNT AS U NEXPLAINED INVESTMENT AND MADE THE ADDITION U/S 69 OF THE ACT TO THE INCOME OF THE ASSESSEE. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE M ATTER TO THE LD. CIT(A) WHO PASSED THE EX PARTE ORDER, BY OBSERVIN G THAT THE NOTICE DATED 17.01.2014 SENT TO THE ASSESSEE FIXING THE CA SE FOR HEARING ON 30.1.2014 HAD NOT BEEN COMPLIED WITH. THE LD. C.I .T.(A) CONFIRMED THE ADDITION MADE BY THE AO. NOW THE ASSE SSEE IS IN APPEAL. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN T HE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) PASSED THE EX PARTE ORD ER BY STATING THAT ITA NO.1838/DEL/2014 3 NOTICE DATED 17.01.2014 FOR HEARING ON 30.01.2014, HAD NOT BEEN COMPLIED WITH. HOWEVER, HE HAS NOT MENTIONED AS TO WHETHER THE SAID NOTICE WAS SERVED UPON THE ASSESSEE OR NOT. IT IS W ELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM , AUDI ALTERAM PERTAM. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND THE ISSUE IS REMANDED BACK TO TH E FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PUR POSES. (ORDER PRONOUNCED IN THE COURT ON 08/07/2015). SD/- (N. K. SAINI) ACCOUNT ANT MEMBER DATED: 08 / 07/2015 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.1838/DEL/2014 4 DATE INITIAL 1. DRAFT DICTATED ON 8.07.2015 2. DRAFT PLACED BEFORE AUTHOR 8.07.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.