Mahendra Bansal, Delhi V. ACIT, Noida

ITA 1860/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6669 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO . .. . 1860/DEL/2016 1860/DEL/2016 1860/DEL/2016 1860/DEL/2016 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2012 2012 2012 2012 - -- - 13 1313 13 SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, C CC C- -- -2/19, PRASHANT VIHAR, 2/19, PRASHANT VIHAR, 2/19, PRASHANT VIHAR, 2/19, PRASHANT VIHAR, DELHI DELHI DELHI DELHI 1 11 110 085. 10 085. 10 085. 10 085. PAN : AAGPB3649E. PAN : AAGPB3649E. PAN : AAGPB3649E. PAN : AAGPB3649E. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE, CENTRAL CIRCLE, CENTRAL CIRCLE, CENTRAL CIRCLE, NOIDA. NOIDA. NOIDA. NOIDA. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. RANO JAIN, ADVOCATE AND SHRI PRANSHU SINGHAL, CA. RESPONDENT BY : SHRI S.S. RANA, CIT - DR. DATE OF HEARING : 24.04.2019 24.04.2019 24.04.2019 24.04.2019 DATE OF PRONOUNCEMENT : 07.05.2019 07.05.2019 07.05.2019 07.05.2019 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2012-1 3 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-I, NOI DA DATED 29 TH JANUARY, 2016. 2. GROUND NO.1 OF THE ASSESSEES APPEAL READS AS UNDER :- 1. THAT THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN PASSING EX-PARTE ORDER IN THE FACTS AND CIRCUMSTANCES OF THE CASE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY T HE LEARNED COUNSEL FOR THE ASSESSEE THAT LEARNED CIT(A) HAS DECIDED THE APPEAL EX-PARTE WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD TO THE ITA-1860/DEL/2016 2 ASSESSEE. HE STATED THAT THOUGH LEARNED CIT(A) HAS MENTI ONED TO HAVE ISSUED NOTICE TWICE BUT NONE OF THE NOTICES ISSUED WAS SER VED UPON THE ASSESSEE. HE, THEREFORE, REQUESTED FOR SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF LEARNED CIT(A) AND HE STATED THAT PROPER OPPORTUNITY OF BEIN G HEARD WAS ALLOWED TO THE ASSESSEE AND SAME WAS NOT AVAILED BY HIM. HE ALSO RELIED UPON THE DECISION OF HONBLE GUJARAT HIGH COU RT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX-3 VS. ASHOKJI CHAN DUJI THAKOR 2018-TIOL-2244-HC-AHM-IT, WHEREIN HONBLE GUJARAT H IGH COURT HAS UPHELD THE EX-PARTE ORDER PASSED BY THE CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IT IS UNDI SPUTED THAT THE CIT(A) OR FOR THAT REASON ANY OTHER AUTHORITY HAS TO DECIDE THE MATTER AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CIT(A) HAS MENTIONED IN HIS ORDER THE APPEAL OF THE APPELLANT WAS FIXED FOR HEARING ON 20/08/2015 AND AGAIN ON 08/09/ 2015. HOWEVER, NEITHER THE ASSESSEE ENTERED APPEARANCE NOR ANY REQUEST FOR ADJOURNMENT WAS RECEIVED . HOWEVER, IN OUR OPINION, MERE ISSUE OF NOTICE IS NOT ENOUGH. IT SHOULD BE SERVED WELL BEFORE THE DATE OF HEARING. IN THIS CASE, NEITHER THE DATE OF ISSUE OF N OTICE NOR THE DATE OF SERVICE IS MENTIONED. IN THE ABOVE CIRCUMSTANCES, WE H AVE NO REASON TO DISBELIEVE THE ASSERTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT NONE OF THE ABOVE NOTICES WAS RECEIVED BY THE ASSESSEE. THE FACTS BEFORE THE HONBLE GUJARAT HIGH COURT IN THE CASE OF ASHOKJI CHANDUJI THAKOR (SUPRA) RELIED UPON BY THE LEARNED DR WERE A LTOGETHER DIFFERENT BECAUSE IN THAT CASE, ADMITTEDLY, NUMBER OF OPPORTUN ITIES WERE GIVEN BY THE ASSESSING OFFICER AS WELL AS CIT(A) AND THE ASSESSEE W AS NON- COOPERATIVE AT EVERY STAGE. IN THIS CASE, THE ASSESSMENT ORDER IS ITA-1860/DEL/2016 3 UNDER SECTION 143(3), MEANING THEREBY, THE ASSESSEE DUL Y APPEARED BEFORE THE ASSESSING OFFICER. EVEN BEFORE US, IN THE FI RST HEARING OF THE APPEAL, THE ASSESSEES COUNSEL APPEARED AND THEREFORE, I T CANNOT BE SAID THAT THE ASSESSEE IS NON-COOPERATIVE IN NATURE. IN THE ABOVE CIRCUMSTANCES, WE DEEM IT APPROPRIATE TO SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR READJUDICATION IN ACCORDANCE WITH LAW AFTER ALLOWING ADEQUATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 07.05.2019. SD/- SD/- (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, SHRI MAHENDRA BANSAL, C CC C- -- -2/19, PRASHANT VIHAR, DELHI 2/19, PRASHANT VIHAR, DELHI 2/19, PRASHANT VIHAR, DELHI 2/19, PRASHANT VIHAR, DELHI 110 085. 110 085. 110 085. 110 085. 2. RESPONDENT : ASSISTANT COMMISSI ASSISTANT COMMISSI ASSISTANT COMMISSI ASSISTANT COMMISSIONER OF INCOME TAX, ONER OF INCOME TAX, ONER OF INCOME TAX, ONER OF INCOME TAX, CENTRAL CIRCLE, NOIDA. CENTRAL CIRCLE, NOIDA. CENTRAL CIRCLE, NOIDA. CENTRAL CIRCLE, NOIDA. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR