M/s. Finesse Impex Ltd., Delhi V. ITO, New Delhi

ITA 19/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4282 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 19 /DEL/2017 : ASSTT. YEAR : 2012 - 1 3 FINESSE IMPEX LTD., D - 5, GANPATI APART MENT, ALIPUR ROAD, CIVIL LINES, DELHI - 110054 VS INCOME TAX OFFICER, WARD - 9(2), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A ACF1830E ASSESSEE BY : NONE REVENUE BY : SH. T. VASANTHAN , SR. DR DATE OF HEARING : 20 .0 9 .201 7 DATE OF PRONOUNCEMENT : 25 .09 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 20.10.2016 OF LD. CIT(A) - 3 , DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME - T AX (APPEALS) GROSSLY ERRED ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT. 2. THAT THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN VIOLATING PRINCIPLES OF NATURAL JUSTICE IN REJECTING REQUEST F OR ADJOURNMENT, PROPERLY FILED BY THE APPELLANT. 3. THAT THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) GROSSLY ERRED IN CONFIRMING ASSESSMENT COMPUTED BY ITA NO . 19 /DEL / 201 7 FINESSE IMPEX LTD. 2 THE LD. A.O. AT RS. 29,74,600/ - INSTEAD OF RETURNED LOSS OF RS.19,403/ - . 4. THE LD. COMMISSIONER OF IN COME - TAX (APPEALS) GROSSLY ERRED IN CONFIRMING: 4.1 THAT A SUM OF RS. 10,00,000/ - IS UNEXPLAINED U/S. 68 OF THE I.T. ACT, 1961. 4.2 THAT A SUM OF RS. 19,94,000/ - IS A LIABILITY REMITTED/CEASED U/S. 41(1) OF THE I.T. ACT, 1961. 4. 3 IN CONFIRMING ADDITION O F RS. 10,00,000/ - U/S. 68 OF THE I.T. ACT, 1961 AND RS. 19,94,000/ - U/S. 41(1) OF THE I.T. ACT, 1961. 5. THAT THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) IS PATENTLY ILLEGAL PERVASIVE TO PROVISIONS OF THE LAW AND INTERPRETATIONS THEREOF GIVEN BY THE COURTS. 6. THAT THE GROUNDS HEREINABOVE ARE WITHOUT PREJUDICE TO EACH OTHER. 7. THAT THE APPELLANT CRAVES, LEAVE TO AD D, AMEND OR ALTER ANY GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3 . DURING THE COURSE OF HEARI NG NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. THEREFORE, THE APPEAL IS DECIDED EX - PARTE AFTER HEARING THE LD. DR. ITA NO . 19 /DEL / 201 7 FINESSE IMPEX LTD. 3 4 . VIDE GROUND NOS. 1 & 2, THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE DISMISSAL OF THE APPEAL E X - PARTE WITHOUT PROVIDING PROPER OPPORTUNITY AND REJECTING THE REQUEST FOR ADJOURNMENT. 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E - FILED THE RETURN OF INCOME ON 15.01.2014 DECLARING A LOSS OF RS.19,403/ - . LATER ON, THE CASE WAS SELECTED FOR SC RUTINY. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.29,74,597/ - ROUNDED OFF TO RS.29,74,600/ - BY MAKING AN ADDITION OF RS.10,00 , 0 00 / - U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND ANOTHER ADDITION OF RS.19,94,000/ - U/S 41( 1) OF THE ACT. 6 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE FOR NON - PROSECUTION BY OBSERVING AS UNDER: THIS OFFICE VIDE NOTICE DATED 27.09.2016 GAVE THE FINAL OPPORTUNITY TO THE APPELLANT TO ATT END THE APPELLATE PROCEEDINGS ON 19.10.2016 AND FILE THE SUBMISSIONS IN REGARD TO THE GROUNDS RAISED IN THE APPEAL. BUT AGAIN THE AR REQUESTED FOR THE ADJOURNMENT. THE ADJOURNMENT SOUGHT BY THE COUNSEL IS REJECTED HAVING SOUGHT WITHOUT ANY VALID REASONS. 7 . NOW THE ASSESSEE IS IN APPEAL. 8. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. FROM THE AFOR ESAID NOTINGS OF THE LD. CIT(A) IN THE IMPUGNED ORDER, IT IS CLEAR THAT THE ASSESSEE SOUGHT AN ITA NO . 19 /DEL / 201 7 FINESSE IMPEX LTD. 4 ADJOURNMENT WH ICH WAS REJECTED BY THE LD. CIT(A). HOWEVER, IT IS NOT MENTIONED THAT WHAT WERE THE REASON FOR SEEKING THE ADJOURNMENT , THE APPLICATION OF THE ASSESSEE WAS REJECTED SIMPLY BY STATING THAT THE ADJOURNMENT WAS SOUGHT WITHOUT ANY VALID REASON. THE LD. CIT(A) DISMISSED THE APPEAL FOR NON - PROSECUTION AND HAD NOT DISCUSSED THE ISSUE RAISED BY THE ASSESSEE ON MERIT. IT IS WELL SETTLED THAT NOBODY SHOULD CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMP UGNED ORDER AND REMAND THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES . (O RD E R PRONOUNCED IN THE COURT ON 25 /09 /2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 25 /09 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR