Rakesh Divedi, New Delhi V. ITO WARD - 40(3), New Delhi

ITA 1959/DEL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6332 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE, SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.1959/DEL/2020 (ASSESSMENT YEAR : 2010-11) I.T.A NO.1960/DEL/2020 (ASSESSMENT YEAR : 2011-12) SH. RAKESH DIVEDI 87, TRIVENI HOUSING SOCIETY, PITAMPURA, NEW DELHI-110 034 PAN-APCPD 9179A VS. INCOME TAX OFFICER, WARD-40(3), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY NONE 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 BOTH THESE APPEALS HAVE BEEN FILED BY THE A SSESSEE WHEREIN THE CORRECTNESS OF THE SEPARATE ORDERS DATED 13.03.2020 OF CIT(A)-14, NEW DELHI PERTAINING TO 2010-11 & 2011-12 ASSESSMENT YEARS AR E ASSAILED ON VARIOUS GROUNDS. 2. AT THE TIME OF HEARING, NO ONE WAS PRE SENT ON BEHALF OF THE ASSESSEE. THE APPEAL WAS PASSED OVER. IN THE NEXT ROUND ALSO THE ASSESSEE REMAINED UNREPRESENTED. HOWEVER, CONSIDERING THE RECORD IN T HE CONTEXT OF GROUND NO.2(I)(II) RAISED BY THE ASSESSEE IN THE RESPECTIV E APPEALS WHICH IS IDENTICAL, ITA NOS.1 959 & 1560 /DEL/2020 RAKESH DIVEDI VS.ITO PAGE 2 OF 4 IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE APPEA LS EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS AFTER HEARING THE LD. SR. DR. 3. FOR THE SAKE OF COMPLETENESS THE RESPECTIVE GROUND IS BEING REPRODUCED FROM ITA NO.1959/DEL/2020. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER, WITHOUT GIVING APP ELLANT A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD, IN VIOLATION OF PRINCIP LE OF NATURAL JUSTICE. (II) THAT THE CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ANY FINDINGS IN THE MERITS OF THE CASE. 4. A PERUSAL OF THE IMPUGNED ORDERS SHOW TH AT VARIOUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE FOR REPRESENTING HIS CASE, HO WEVER, THE ASSESSEE MERELY SENT ADJOURNMENT APPLICATIONS AND IN EFFECT NO EFFE CTIVE REPRESENTATION WAS MADE. CONSIDERING THE VARIOUS OPPORTUNITIES GIVEN T HE LD. CIT(A) WAS OF THE VIEW THAT THE ASSESSEE IS NOT INTERESTED IN EFFECTI VELY PURSUING THE APPEALS FILED AND GUIDED BY THE PRINCIPLE AS SET OUT BY THE APEX COURT IN CIT VS. B.N. BHATTACHARYA [1997] 118 ITR 461(SC) AND DELHI TRIBUNAL IN CIT VS. MULTIPLAN INDIA PVT. LTD. AS REPORTED IN 38 ITD 320 (DELHI) DISMISSED THE APPEALS OF THE ASSESSEE. 5. AGGRIEVED BY THIS ASSESSEE IS IN APPEAL BEFORE THE ITAT ON VARIOUS GROUNDS. APART FROM THE LACK OF OPPORTUNITY ETC. TH E ASSESSEE HAS ALSO CHALLENGED THE ASSUMPTIONS OF JURISDICTION WHICH WA S A GROUND RAISED BEFORE THE CIT(A) ALSO AS GROUND NOS. 2 TO 7. THESE HAVE R EMAINED UNDECIDED. ITA NOS.1 959 & 1560 /DEL/2020 RAKESH DIVEDI VS.ITO PAGE 3 OF 4 6. THE LD. SR. DR RELYING UPON THE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE HAS BEEN GIVEN SUFFICIENT OPPORTUNITY BEFORE THE ASSESSING OFFICER AND HAS FAILED TO SUBSTANTIATE THE SOURCE OF CREDIT ENTRIES IN HIS BANK ACCOUNT, AS A RESULT OF WHICH THE IMPUGNED ADDITION OF RS.25 ,86,560/- AND RS.36,15,053/- WAS MADE IN THE RESPECTIVE YEARS. SI NCE, THE ASSESSEE HAS FAILED TO AVAIL OF THE OPPORTUNITIES BEFORE THE LD. CIT(A), THE ADDITIONS SUSTAINED IT WAS HIS PRAYER MAY BE CONFIRMED. 7. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE, IT IS SEE N THAT ADDITIONS MADE BY THE ASSESSING OFFICER WERE CHALLENGED IN APPEAL BY THE ASSESSEE IN BOTH THE YEARS. ON A PERUSAL OF THE IMPUGNED ORDER IT IS SEEN THAT THE ASSESSEE WAS REPRESENTED BY SH. S.K. SINGHAL, C.A WHO REPEATEDLY SOUGHT TIME ON THE VARIOUS DATES ON WHICH THE HEARING WAS FIXED AS REC ORDED IN PAGES 2 & 3 OF THE IMPUGNED ORDER. HOWEVER, HE FAILED TO MAKE ANY SUBM ISSIONS WHATSOEVER ON BEHALF OF THE ASSESSEE. IN THE SAID FACTUAL BACK GR OUND IT IS CLEAR THAT THE ASSESSEE WAS NOT EFFECTIVELY REPRESENTED BEFORE THE FIRST APPELLATE AUTHORITY. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUSTIC E, IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDERS BACK TO THE FILE OF T HE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDL ESS TO SAY THAT THE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IN GOOD FAI TH, IT IS HOPE IS USED FAIRLY AND FULLY AND THE TRUST REPOSED IS NOT ABUSED. IT I S MADE CLEAR THAT IN THE EVENTUALLY OF ABUSING THE TRUST REPOSE, THE LD. CIT (A) WOULD BE AT LIBERTY TO PASS ITA NOS.1 959 & 1560 /DEL/2020 RAKESH DIVEDI VS.ITO PAGE 4 OF 4 AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECO RD AND IN ACCORDANCE WITH LAW. SAID ORDER WAS PRONOUNCED AT THE TIME OF VIRTU AL HEARING ITSELF IN THE PRESENCE OF THE PARTIES WEBEX. 8. 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