Matrix Consuktancy Services, New Delhi V. DCIT CPC , Bengaluru

ITA 1936/DEL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6324 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 09-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MITALI DAMA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 44AD; 143(1); 44DA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE, SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.1936/DEL/202 0 (ASSESSMENT YEAR: 2017-18) M/S MATRIX CONSULTANCY SERVICES, FLAT NO.128, PKT-5 GF, SECTOR-21, ROHINI, NEW DELHI-110 085 PAN-AAQFM 5345L VS. DCIT,CPC, BENGALURU (APPELLANT) (RESPONDENT) APPELLANT BY MS. MITALI DAMA, CA RESPONDENT BY SH. R.K. GUPTA, SR. DR DATE OF HEARING 16.08.2021 DATE OF PRONOUNCEMENT 17.08.2021 HEARING CONDUCT ED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE AS SESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 31.08.2020 OF CIT(A) -13, NEW DELHI PERTAINING TO 2017-18 ASSESSMENT YEAR IS ASSAILED ON VARIOUS GROU NDS INCLUDING GROUND NO.1 ON WHICH THE PARTIES WERE HEARD. SAID GROUND IS RE PRODUCED HERE UNDER FOR THE SAKE OF COMPLETENESS. 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF DCIT, CPC IN CLASSIFYING BU SINESS ACTIVITIES OF THE APPELLANT U/S 44DA AS AGAINST SECTION 44AD THROUGH INTIMATION PASS ED U/S 143(1) BY NEITHER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEAD TO THE APPELLANT NOR PROVIDING ANY REASONING/EXPLANATION FOR SUCH IMPUGNED ADJUSTMENTS ; THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE AS HELD BY THIS HONBLE BENCH IN CA SE OF AWP ASSISTANCE (INDIA) PVT. LTD. VS. DCIT [ITA 5128/DEL/2018; ORDER DATED 07.08.2020] . ITA NO.1936 /DEL/ 2020 MATRIX CONSULTANCY SERVICES VS. DCIT PAGE 2 OF 3 2. BOTH THE PARTIES HAVE HEARD. 3. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE APPEAL ORDER HAS BEEN PASSED WITHOUT HEARING THE ASSESSEE EFFECTIVEL Y. PARA 3.1 OF THE ORDER MADE A REFERENCE TO SOME A WRITTEN SUBMISSIONS FILE D BY E-MAIL ON 13.08.2020 BY THE ASSESSEE. A PERUSAL OF THE ORDER SHOWS THAT THE WRITTEN SUBMISSIONS WERE FOUND TO BE INADEQUATE FOR GRANTING THE RELIEF PRAYED FOR. FROM A PERUSAL OF THE ORDER IT IS EVIDENT THAT THE ASSESSEE WAS NO T PUT TO NOTICE OF THIS FACT THAT THE WRITTEN SUBMISSIONS WERE NOT SUFFICIENT FO R GRANTING RELIEF. ACCORDINGLY, THE ORDER HAVING FAILED TO PASS THE TE STS OF FAIR AND EFFECTIVE HEARING IN TERMS OF THE PRINCIPLES OF NATURAL JUSTI CE CANNOT BE UPHELD. IT IS A SETTLED LEGAL POSITION THAT BEFORE PASSING AN ADVER SE ORDER IT IS INCUMBENT UPON THE ADJUDICATING AUTHORITY TO GIVE DUE OPPORTU NITY OF BEING HEARD TO THE APPELLANT. AN APPELLANT MAY REMAIN ON A MISTAKEN BE LIEF THAT ITS CLAIM IS BEING ALLOWED ON THE BASIS OF THE WRITTEN SUBMISSIO N. BY MAKING ITS SUBMISSIONS AVAILABLE THE APPELLANT DOES NOT WAIVE OFF HIS RIGHT TO BE HEARD. IN THE FACTS OF THE PRESENT CASE, EFFECTIVE AND MEANIN GFUL OPPORTUNITY OF BEING HEARD ADMITTEDLY HAS NOT BEEN GRANTED TO THE ASSESS EE. THUS, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IMPUGNED ORDER IS SET A SIDE AND ISSUES ARE RESTORED BACK TO THE FILE OF CIT(A) WITH THE DIRECTION TO PA SS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS D IRECTED TO ENSURE FULL AND PROPER PARTICIPATION BEFORE THE APPELLATE AUTHORITY AND NOT TO ABUSE THE TRUST ITA NO.1936 /DEL/ 2020 MATRIX CONSULTANCY SERVICES VS. DCIT PAGE 3 OF 3 REPOSED. SAID ORDER WAS PRONOUNCED AT THE TIME OF V IRTUAL HEARING ITSELF IN THE PRESENCE OF THE PARTIES WEBEX. 4. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 17 TH AUGUST, 2021. SD/- (D IVA SINGH) JUDICIAL MEMBER DATED: 17/08/2021 PK/PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI