M/s. Sensports International, New Delhi V. ITO, New Delhi

ITA 1971/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6772 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 18-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2 NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER ITA NO. 1971/DEL/2015 ASSTT. YR: 2008-09 SENSPORTS INTERNATIONAL VS. INCOME-TAX OFFICER, B-423, NEW FRIENDS COLONY, WARD-22(2), NEW DELHI . NEW DELHI. PAN: AAAFS 0473 M ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI M.P. RASTOGI AR RESPONDENT BY : SHRI N.K. BANSAL SR. DR DATE OF HEARING : 18/07/2016. DATE OF ORDER : 25/07/2016. O R D E R THIS IS ASSESSEES APPEAL AGAINST THE ORDER DATED 12.01.2015, PASSED BY THE LD. CIT(A)-41, NEW DELHI, RELATING TO A.Y. 2010-11. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITS APPEAL ARE AS UNDER: 1) THAT THE NOTICE OF HEARING DATED 15TH DECEMBER 2 014 FIXING THE DATE FOR 12TH JANUARY 2015 HAS NOT BEEN RECEIVED BY THE APPELLANT AND CONSEQUENTLY THE ORDER OF THE CIT (APPEALS) DISMISSING THE APPEAL OF THE APPELLANT EX-PARTE IS ARBITRARY, UNJUST AND BAD IN LAW. 2) THAT THE CIT (APPEALS) OUGHT NOT TO HAVE-PASSED THE ORDER EX- PARTE ON ACCOUNT OF ALLEGED NON-APPEARANC E ON 12TH JANUARY 2015 FOR WANT OF NON-PROSECUTION. ON THE CO NTRARY, HE 2 HAS TO DECIDE THE APPEAL ON MERITS AND CONSEQUENTLY THE ORDER OF THE CIT (APPEALS) IS ARBITRARY, UNJUST AND UNTEN ABLE IN LAW. 3) THAT THE ADDITION OF RS.19,98,000/- U/S 68 OF TH E INCOME- TAX ACT, 1961 (THE ACT) IS ARBITRARY, UNJUST AND BA D IN LAW. 4) THAT THE TOTAL INCOME ASSESSED AT RS.19,98,000/- AND THE INCOME TAX DEMAND CREATED THEREON AT RS.8, 14,944/- WHICH INCLUDES THE INTEREST CHARGED U/S 2348 OF THE ACT I S ARBITRARY, UNJUST AND AT ANY RATE VERY EXCESSIVE. 5) THAT THE ASSESSEE DENIES ITS LIABILITY TO CHARGE INTEREST U/ S 234B OF THE ACT AT RS.1,97,562/-. 6) THAT THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE ASSESSEES APPEAL, EX PARE, QUA T HE ASSESSEE, IN LIMINE. IN SUPPORT OF HIS CONTENTION, LD. COUNSEL RELIED ON THE JUDGM ENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PREMKUMAR ARJUNDAS LUT HRA (HUF) (2016) 240 TAXMAN 133/69 TAXMANN.COM 407 (BOM.), WHEREIN THE H ONBLE BOMBAY HIGH COURT, WHILE CONSIDERING THE POWERS OF CIT(A), HAS OBSERVED IN PARA 8 AS UNDER: 8. FROM THE AFORESAID PROVISIONS, IT IS VERY CLEAR ONCE AN APPEAL IS PREFERRED BEFORE THE CIT(A), THEN IN DIS POSING OF THE APPEAL, HE IS OBLIGED TO MAKE SUCH FURTHER INQUIRY THAT HE THINKS FIT OR DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO HIM AS FOUND IN SE CTION' 250(4) 'OF THE ACT! FURTHER SECTION 250(6) OF THE ACT OBLI GES THE CIT(A) TO DISPOSE OF AN APPEAL IN WRITING AFTER STATING TH E POINTS-FOR- DETERMINATION AND THEN RENDER A DECISION ON EACH :6 F1 THE POINTS WHICH ARISE 'FOR CONSIDERATION WITH REASONS IN SUPPORT. SECTION 251(1))(A) AND (B) OF THE ACT PROVIDE THAT WHILE 3 DISPOSING OF APPEAL, THE CIT(A) WOULD HAVE THE POW ER TO CONFIRM, REDUCE, ENHANCE OR ANNUL AN ASSESSMENT AND /OR. PENALTY. BESIDES EXPLANATION TO SUB-SECTION (2) OF SECTION 251 OF THE ACT ALSO MAKES IT CLEAR THAT WHILE CONSIDERI NG THE APPEAL, THE CIT(A) WOULD BE ENTITLED TO CONSIDER AND DECIDE ANY ISSUE ARISING IN THE PROCEEDINGS BEFORE HIM IN APPEAL FIL ED FOR ITS CONSIDERATION, EVEN IF THE ISSUE IS NOT RAISED BY T HE APPELLANT IN ITS APPEAL BEFORE THE CIT(A). THUS ONCE AN ASSESSEE FILES AN APPEAL UNDER SECTION 246A OF' THE ACT, IT IS NOT OP EN TO HIM AS OF RIGHT TO WITHDRAW OR NOT PRESS THE APPEAL. IN FA CT THE CIT(A) IS OBLIGED TO DISPOSE OF THE APPEAL ON MERITS. IN F ACT WITH EFFECT FROM IST JUNE, 2001 THE POWER OF THE CIT(A) TO SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND RESTORE IT TO TH E ASSESSING OFFICER FOR PASSING A FRESH ORDER STANDS WITHDRAWN. THEREFORE, IT WOULD BE NOTICED THAT THE POWERS OF THE CIT(A) I S CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER I.E. HE CAN DO ALL THAT ASSESSING OFFICER COULD DO. THEREFORE, JUST AS IT I S NOT OPEN TO THE ASSESSING OFFICER TO NOT COMPLETE THE ASSESSMEN T BY ALLOWING THE ASSESSEE TO WITHDRAW ITS 'RETURN 'OF I NCOME, 'IT IS NOT OPEN TO 'THE 'ASSESSEE IN APPEAL TO WITHDRAW AN D/OR THE CIT(A) TO DISMISS THE APPEAL ON ACCOUNT OF NON-PROS ECUTION OF THE APPEAL BY THE ASSESSEE. THIS IS AMPLY CLEAR FRO M THE SECTION 251( 1)( A) AND (B) AND EXPLANATION TO SECTION 251 (2) OF THE ACT WHICH REQUIRES THE CIT(A) TO APPLY HIS MIND TO ALL THE ISSUES WHICH ARISE FROM THE IMPUGNED ORDER- BEFORE HIM WHETHER OR NOT THE SAME HAS BEEN RAISED BY THE APPE LLANT BEFORE HIM. ACCORDINGLY, THE LAW DOES NOT EMPOWER THE CIT( A) TO DISMISS THE APPEAL FOR NON- PROSECUTION AS IS EVIDE NT FROM THE PROVISIONS OF THE ACT . 4. LD. DR RELIED ON THE ORDER OF CIT(A). 5. HAVING HEARD RIVAL CONTENTIONS OF THE PARTIES, I AM OF THE CONSIDERED OPINION THAT THE IMPUGNED EX PARTE ORDER PASSED BY THE LEAR NED CIT(APPEALS) CANNOT BE ACCEPTED IN THE EYE OF LAW. THE LEARNED CIT(A) BEIN G FIRST APPELLATE AUTHORITY, WAS DUTY BOUND TO DISPOSE OFF THE ISSUES RAISED BEFORE HIM ON MERITS. THEREFORE, ORDER 4 OF THE LEARNED CIT(A) IS SET ASIDE AND THE MATTER I S RESTORED BACK TO HIM WITH THE DIRECTION TO PASS A REASONED ORDER, ON THE GROUNDS OF APPEAL RAISED BEFORE HIM, IN ACCORDANCE WITH LAW, OF COURSE, AFTER AFFORDING REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCEMENT IN OPEN COURT ON 25/07/2016. SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 25/07/2016. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI.