M/s. N.V. Marketing Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 1990/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3336 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 26-04-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 04-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NITIN AGGARWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA PILLAI , JM ITA NO. 1990 /DEL/2014 : ASSTT. YEAR : 2004 - 05 N. V. MARKETING PVT. LTD., E - 217, GREATER KAI LASH, PART - I, NEW DELHI - 110048 VS DCIT, CIRCLE - 13(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A ACN2680G ASSESSEE BY : SH. NITIN AGGARWAL, AR REVENUE BY : SH. RAJESH KUMAR , SR. DR DATE OF HEARING : 2 6 .04 .201 7 DATE OF PRONOUNC EMENT : 26 . 04 .201 7 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 20.12.2012 OF LD. CIT(A) - X VI , DELHI . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF PENALT Y OF RS.28,70,620/ - LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 01.11.2004 DECLARING AN INCOME OF RS.3,81,35,480/ - . TH E AO HOWEVER FRAMED THE ASSESSMENT U/S 147/143(3) OF THE ACT ON 24.12.2009 AT AN INCOME OF ITA NO. 1990 /DEL /201 4 N. V. MARKETING PVT. LTD. 2 RS.4,62,87,380/ - AFTER MAKING ADDITION IN RESPECT OF UNEXPLAINED EXPENSES AMOUNTING TO RS.78,45,000/ - AND COMMISSION AMOUNTING TO RS.1,56,900/ - . THE AO ALSO INITIATE D THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND LEVIED THE PENALTY OF RS.28,70,682/ - . 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE FOR NON - PROSECUTION IN LIMINE. 5 . NOW THE ASSESSEE IS IN APPEAL. 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT THE LD. CIT(A) I N THE BODY OF THE IMPUGNED ORDER H AS MENTIONED IN COLUMN NO. 9 RELATING TO DATE OF HEARING AS NIL. IT, THEREFORE, APPEARS THAT NO OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WAS PROVIDE BY THE LD. CIT(A). IT IS ALSO NOTICED THAT THE LD. CIT(A) IN PARA 3.1 OF THE IMPUGNED ORDER HAS MENTIONED THAT THE APPEAL WAS FIXED FOR HEARING O N 18.12.2013 BUT ON THE SAID DATE NOBODY WAS PRESENT NOR ANY SUBMISSION WAS MADE. HOWEVER, HE HAS NOT MENTIONED THAT THE DATE OF HEARING WAS INTIMATED TO THE ASSESSEE OR THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. ITA NO. 1990 /DEL /201 4 N. V. MARKETING PVT. LTD. 3 IT IS WELL SETTLED THAT NOBODY SHO ULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, THE LD. CIT(A) HAD NOT AFFORDED DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMA ND THE 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 TO THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( OR DER PRON OUNCED IN THE COURT ON 26 /04/2017 ) SD/ - SD/ - (BEENA PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 26 /04/2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR