Vikas Sharma, New Delhi V. ACIT Circle-45(1), New Delhi

ITA 2211/DEL/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0742 (ITAT-DELHI)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 13-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay; Set aside
• Section: 68; 145

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY F : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER SA NO. 369/DEL/2019 AND ITA NO. 2211/DEL/2019 (ASSESSMENT YEAR: 2014 - 15 ) VIKASH SHARMA, C/O. KAPIL GOEL, ADV. F - 26/124, SEC - 07, ROHINI, NEW DELHI PAN: ANZPS6597C VS. ACIT, CIRCLE - 45(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL, ADV REVENUE BY: SHRI N. K. BANSAL, SR. DR DATE OF HEARING 22/03 / 201 9 DATE OF PRONOUNCEMENT 2 8 / 03 / 2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS STAY PETITION NUMBER 369/ DEL /2019 IS FILED BY THE ASSESSEE IN ITA NUMBER 2211/DEL/2019 FOR ASSESSMENT YEAR 2014 15 FOR STAY OF OUTSTANDING DEMAND OF INR 7 333864+ INTEREST THEREON MAKING THE TOTAL OUTSTANDING DEMAND OF RS. 11959980 / - . AGAINST THE ABOVE DEMAND INCOME TAX DEPARTMENT HAS RECOVERED INR 4 626116 / - FROM THE BANK ACCOUNT OF THE ASSESSEE ON VARIOUS DATES. THEREFORE FOR THE BALANCE SUM THE ASSESSEE HAS REQUESTED FOR STAY OF DEMAND. 2 . IN THE STAY PETITION THE FACT SHOWS THAT THE ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME ON 30/9/2014 DECLARING INCOME OF INR 1589760/ . THE ASSESSMENT U/S 143 (3) WAS MADE B Y THE LEARNED ASSESSING OFFIC ER WHEREIN AN ADDITION OF INR 2 4576311/ - WAS MADE ON ACCOUNT OF TRADE CREDITORS UNDER SECTION 68 OF THE INCOME TAX ACT. ON APPEAL BEFORE THE LEARNED CIT A THE ABOVE ADDITION WAS CONFIRMED. THEREFORE THE ASSESSEE HAS FILED A N APPEAL BEFORE THE COORDINATE BENCH AND ALSO THE STAY PETITION. 3 . THE ONLY ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE WAS THAT THE ADDITION HAS BEEN MADE ARE TO THE INCOME OF THE ASSESSEE WHICH IS ALMOST PAGE | 2 16 TIMES OF THE RETURNED INCOME WITHOUT INVOKI NG THE PROVISIONS OF SECTION 145 OF THE INCOME TAX ACT. HE STATED THAT IN SUCH A SITUATION THE TAX DEMAND SHOULD BE KEPT IN ABEYANCE FOR RECOVERY. HE FURTHER SUBMITTED THAT ASSESSEE HAS ALREADY PAID ALMOST 40% OF THE DEMAND AND THEREFORE IT DESERVES THE STAY FOR THE BALANCE SUM. 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUBMITTED THAT THE ASSESSEE IS A NON - COOPERATIVE ASSESSEE WHO DID NOT APPEAR BEFORE THE LOWER AUTHORITIES AND DID NOT COOPERATE IN THE ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS AND THEREFORE HE DOES NOT DESERVE A STAY. 5 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT THE ASSESSEE WAS ASSESSED AT INR 2 7766070 / - AGAINST THE RETURNED INCOME OF INR 1 589760 BY THE LEARNED ASSESSING OFFICER BY MAKING USUAL ADDITION O F INR 26,176,311/ - ON 29/12/2016. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT A WHO DISMISSED THE APPEAL OF THE ASSESSEE AS ON 7 OCCASIONS THE NOTICES WERE ISSUED TO THE ASSESSEE BUT HE DID NOT APPEAR ON HE REQUESTED FOR ADJOURNMENT. THEREFO RE THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE US. ON PERUSAL OF THE CONDUCT OF THE ASSESSEE BEFORE THE LEARNED CIT A WHEREIN ON 7 OCCASIONS HE DID NOT REMAIN PRESENT BEFORE HIM IN SPITE OF THE ASSESSEE PAYING ALMOST 40% OF THE TAX DEMAND HE DOES NOT DE SERVE THE STAY. HENCE TO PETITION FILED BY THE ASSESSEE IS DISMISSED. 6 . HOWEVER ON LOOKING AT THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS APPARENT THAT THE LEARNED CIT A HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NONPROSECUTION BUT NOT ON THE MERITS. THEREFORE IT IS IMPERATIVE THAT THE ISSUE HAS TO BE DECIDED ON THE MERITS OF THE CASE EVEN IF THE ASSESSEE DOES NOT REMAIN PRESENT BEFORE HIM. 7 . AT THE REQUEST OF BOTH THE PARTIES THE MATTER WAS HEARD. THE LEARNED DEPARTMENTAL REPRESENTATIVE AS WELL AS T HE LEARNED AUTHORISED REPRESENTATIVE REQUESTED FOR THE MATTER TO BE SET ASIDE TO THE FILE OF THE LEARNED LOWER AUTHORITIES SO THAT THE ASSESSEE CAN REPRESENT HIS CASE. 8 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AS WELL AS PERUSED THE ORDERS OF THE L OWER AUTHORITIES. AS THE LEARNED CIT A HAS NOT DECIDED THE ISSUE ON THE MERITS OF THE CASE WE SET ASIDE THE WHOLE ISSUE BACK TO THE FILE OF THE LEARNED CIT A WITH A DIRECTION TO THE ASSESSEE TO REMAIN PRESENT BEFORE HIM ON 14/5/2019 AND IS MAKE HIS SU BMISSION BEFORE HIM. THE PAGE | 3 LEARNED CIT A IS ALSO DIRECTED TO CONSIDER THE SUBMISSION OF THE ASSESSEE AND DECIDE THE ISSUE AFRESH ON THE MERITS OF THE CASE. 9 . ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. 10 . ACCORDINGLY STAY PETITION NUMBER 369/ DEL /2019 IN ITA NUMBER 2211/ DEL /2019 FOR ASSESSMENT YEAR 2014 15 FILED BY THE ASSESSEE ARE DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 / 03 / 2019 . - SD/ - - SD/ - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 8 / 03 / 2019 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI