M/s Dish TV India Ltd., Noida V. ACIT, Noida

ITA 2088/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2837 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 18-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJIV SAPRA F
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. K. N. CHARY , JM ITA NO. 2088 /DEL/201 6 : ASSTT. YEAR : 2011 - 12 DISH TV INDIA LTD., FC - 19, FILM CITY, SECTOR - 16 A, NOIDA - 201301 (U.P.) VS ADDL. COMMISSIONER OF INCOME TAX (TDS), GHAZIABAD (APPELLANT) (RESPONDENT) PAN NO. A A ACA5478M ASSESSEE BY : SH. SANJIV SAPRA, F CA REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 19 .12 .201 7 DATE OF PRONOUNCE MENT : 21 .12 .201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE AS SESSEE AGAINST THE ORDER DATED 29.02.2016 OF LD. CIT(A ) - I , NOIDA . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1 . THAT THE LD. CIT(A) OUGHT NOT TO HAVE DECIDED THE APPEAL IN AN EX - PARTE MANNER VIDE HIS APPELLATE ORDER DATED 29/02/2016 THEREBY IGNORING ASSESSEE'S APPLICATION FOR ADJOURNMENT OF THE APPEAL FILED ON 23/02/2016 AND THE REFORE, THE IMPUGNED ORDER IS ARBITRARY, UNJUST AND ILLEGAL. 2. THAT EVEN ON THE PREVIOUS DATES OF HEARINGS VIZ. 28/05/2015, 08/01/2016 AND 01/02/2016, THE APPELLANT HAD SOUGHT ADJOURNMENT WHICH WAS DULY GRANTED. CONSEQUENTLY, THE OBSERVATIONS MADE BY ITA NO . 2088 /DE L /2016 DISH TV INDIA LTD. 2 THE ID. CIT(A) IN PARA 2 OF HIS APPELLATE ORDER ARE ALSO FACTUALLY INCORRECT. 3. THE IMPUGNED ORDER PASSED BY THE ID. CIT(A) IS ALSO ARBITRARY, UNJUST AND UNTENABLE BECAUSE THE ID. CIT(A) HAD NOT AT ALL DISCUSSED THE STATEMENT OF FACTS AND THE GROUNDS OF APP EAL AS FILED BEFORE HIM AGAINST THE IMPOSITION O F PENALTY U/S 27 1C OF I.T. ACT. 4. THAT THE PENALTY OF RS. 15,78,108/ - AS LEVIED U/S 271C OF I.T. ACT BEING ARBITRARY, UNJUST AND ILLEGAL ON VARIOUS FACTUAL AND LEGAL GROUNDS, THE SAME DESERVE TO BE DELETED. 5. THAT THE LD. CIT(A) HAS ERRED IN FACTS BY HOLDING THAT THE DISPUTE IS ALREADY COVERED IN THE EARLIER APPEALS AND HAS IGNORED THAT THE FACTS OF PRESENT APPEAL ARE DIFFERENT FROM EARLIER APPEALS. 6. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND/M ODIFY THE GROUNDS 3. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING DUE AND PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE AO LEV IED THE PENALTY OF RS.15,78,108/ - U/S 271C OF THE INCOME TAX ACT, 1961 HOLDING THAT THE ASSESSEE HAS FAILED TO DEPOSIT THE TAX TO THE CREDIT OF CENTRAL GOVERNMENT AND HAS ALSO FAILED TO ITA NO . 2088 /DE L /2016 DISH TV INDIA LTD. 3 DEDUCT TAX AT SOURCE CORRECTLY CAUSING SH ORT DEDUCTION OF TAX ON THE ELIGIBLE AMOUNT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DECIDED THE ISSUE IN FAVOUR OF THE DEPARTMENT BY PASSING THE EX - PARTE ORDER. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS COMMUNICATED TO THE ASSESSEE, THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DECIDING THE APPEAL EX - PARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN HIS RIVAL SUB MISSIONS, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) IN PARA 2 OF TH E IMPUGNED ORDER NOTED THAT THE CASE WAS FIXED FOR HEARING ON 28.05.2015, 08.01.2016 AND 01.02.2016 BUT NOWHERE HE STATED THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, ITA NO . 2088 /DE L /2016 DISH TV INDIA LTD. 4 THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PR OVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRONOUNCED IN THE COURT ON 21 /12 /2017) SD/ - SD/ - (K. N. CHARY ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 /12 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR