Hari Sharan Devgan, Delhi V. ITO, New Delhi

ITA 2213/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87066 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 09-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: AJAY K AGARWAL
• Keywords: Principle of natural justice; Assessment record
• Section: 68; 144

Judgement Text

ITA NO. 2213/D/2013 ASSTT.YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.2213/DEL/2013 ASSESSMENT YEAR : 2009-10 HARI SHARAN DEVGAN, VS INCOME TAX OFFICER, E-2/11, GANGA TRIVENI WARD 21(3), NEW DELHI. APARTMENTS, SECTOR-9, ROHINI, DELHI-110085 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY K. AGARWAL, CA RESPONDENT BY : SHRI T. VASANTHAN, SR . DR DATE OF HEARING: 10.3.2015 DATE OF PRONOUNCEMENT: O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THE ABOVE APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-XXII, NEW DELHI DATED 29.01.2013 IN APPE AL NO. 223/11-12 FOR AY 2009-10. 2. FIRST OF ALL, WE TAKE UP GROUND NO. 5 OF THE ASS ESSEE WHICH READS AS UNDER:- 5. THAT THE LD. CIT(A) DISMISSED THE APPEAL WITHO UT CONSIDERING THE DETAILED STATEMENT OF FACTS REGARDI NG NON- APPLICABILITY OF SEC 68 AND APPLICABILITY OF SEC 44 AF SUBMITTED WITH FORM NO.35 WHEREAS NOTICE OF CIT(A) US/ 250 CL EARLY ITA NO. 2213/D/2013 ASSTT.YEAR: 2009-10 2 STATES THAT THE APPEAL WILL BE DECIDED ON THE WRITT EN SUBMISSION IN THE CASE OF NON-APPEARANCE. 3. APROPOS GROUND NO.5, LD. AR SUBMITTED THAT THE A O PASSED EX PARTE ORDER U/S 144 OF THE ACT ON 21.12.2011 WITHOUT AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE. THE LD. AR FURTHER POINTED OUT T HAT THE AO MADE AN UNSUSTAINABLE AND UNJUSTIFIED ADDITION U/S 68 OF TH E ACT WITHOUT ANY BASIS. LD. AR FURTHER CONTENDED THAT THE AGGRIEVED ASSESSEE PR EFERRED AN APPEAL BEFORE THE CIT(A) WHICH WAS ALSO DECIDED EX PARTE WITHOUT AFFO RDING DUE OPPORTUNITY OF HEARING AND WITHOUT CONSIDERING THE DETAILED STATEM ENT OF FACTS REGARDING NON- APPLICABILITY OF SECTION 68 OF THE ACT AND APPLICAB ILITY OF SECTION 44AF OF THE ACT SUBMITTED ALONG WITH FORM NO.35 OF THE ACT. LD . AR FURTHER POINTED OUT THAT AS PER PROVISIONS OF SECTION 250 OF THE ACT, A PPEAL SHALL BE DECIDED ON WRITTEN SUBMISSIONS AND EXPLANATION OF THE ASSESSEE IN THE CASE OF NON- APPEARANCE OF THE ASSESSEE AND HIS REPRESENTATIVE D URING THE FIRST APPELLATE PROCEEDINGS. LD. DR VEHEMENTLY CONTENDED THAT THE AUTHORITIES BELOW CLEARLY VIOLATED THE PRINCIPLES OF NATURAL JUSTICE AND PASS ED ASSESSMENT AND IMPUGNED ORDER WITHOUT AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE, THEREFORE, THE SAME BE SET ASIDE BY RESTORING THE CASE TO THE ASSESSMENT STAGE TO THE FILE OF AO. 4. LD. DR REPLIED THAT IF DESPITE DUE SERVICE OF NO TICE, ASSESSEE AND HIS REPRESENTATIVE ARE NOT APPEARING DURING THE ASSESSM ENT PROCEEDINGS, THEN THE AO HAD NO OPTION BUT TO COMPLETE THE PROCEEDINGS ON THE BASIS OF MATERIAL ITA NO. 2213/D/2013 ASSTT.YEAR: 2009-10 3 AVAILABLE ON RECORD BEFORE HIM. LD. DR FAIRLY ACCE PTED THAT THE CIT(A) WAS DUTY BOUND TO ADJUDICATE THE ISSUE ON THE BASIS OF WRITTEN SUBMISSIONS AND EXPLANATION FILED BY THE ASSESSEE DURING FIRST APPE LLATE PROCEEDINGS AND ALSO ON THE BASIS OF ASSESSMENT RECORDS BUT THE CIT(A) HAS PASSED A BRIEF AND CRYPTIC ORDER BY APPLYING DECISION OF ITAT DELHI IN THE CAS E OF CIT VS MULTIPLAN INDIA (P) LTD. 38 ITD 230 (DELHI). LD. DR FINALLY SUBMIT TED THAT THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE MATTER IS RESTORED TO T HE FILE OF AO FOR DE NOVO FRAMING OF ASSESSMENT. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, W E ARE OF THE CONSIDERED VIEW THAT THE ASSEESSEE WAS NOT GRANTED DUE OPPORTU NITY OF HEARING BEFORE THE AUTHORITIES BELOW WHICH IS A CLEAR VIOLATION OF PRI NCIPLES OF NATURAL JUSTICE. WE ALSO NOTE THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ADDRESSING AND ADJUDICATING THE ISSUES RAISED BY TH E ASSESSEE IN THE GROUNDS PLACED DURING FIRST APPELLATE PROCEEDINGS AND AS PE R PROVISIONS OF SECTION 250 OF THE ACT, THE CIT(A) IS DUTY BOUND TO ADDRESS AND AD JUDICATE ALL THE ISSUES ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD EVEN IN THE SITUATION OF ABSENCE OF ASSESSEE AND HIS REPRESENTATIVE. THE CI T(A) IS NOT EMPOWERED TO DISMISS THE APPEAL FOR NON-PROSECUTION BY FOLLOWING THE ORDER OF THE ITAT DELHI IN THE CASE OF MULTIPLAN (SUPRA). HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE AUTHORITIES BELOW FRAMED EX PARTE ASSESSME NT AND DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT ADJUDICATING THE G ROUNDS RAISED BY THE ASSESSEE ITA NO. 2213/D/2013 ASSTT.YEAR: 2009-10 4 BEFORE THE CIT(A). THEREFORE, ASSESSMENT ORDER AS WELL AS IMPUGNED ORDER ARE SET ASIDE AND THE CASE IS RESTORED TO THE FILE OF A O FOR FRESH DE NOVO FRAMING OF ASSESSMENT AFTER AFFORDING DUE OPPORTUNITY OF HEARI NG FOR THE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSEE SHALL COOPERATE W ITH THE ASSESSEE DURING FRESH ASSESSMENT PROCEEDINGS. ACCORDINGLY, GROUND NO. 5 OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. SINCE BY THE EARLIER PART OF THIS ORDER, WE HAVE RESTORED THE CASE TO THE FILE OF AO FOR A FRESH FRAMING OF ASSESSMENT, THEREFORE, OTHER GROUNDS RAISED BY THE ASSESSEE DO NOT SURVIVE FOR ADJUDICATION ON MERITS AND WE DISMISS THE SAME AS BEING INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.3.2015. SD/- SD/- (S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 16TH MARCH 2015 GS ITA NO. 2213/D/2013 ASSTT.YEAR: 2009-10 5 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR