Beena Gutgutia, New Delhi V. ACIT, New Delhi

ITA 2258/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7018 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KR JIWANI
• Assessee Lawyers: RIDHI KARAN AGGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO S . 2257 & 2258 /DEL/201 5 A.Y RS . : 2003 - 04 & 2006 - 07 BEENA GUTGUTIA, J-238, SAINIK FARMS, NEW DELHI 11 062 (PAN: AJHPG5447K) VS. ACIT, CENTRAL CIRCLE-19, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RIDHI KARAN AGGARWAL, CA DEPARTMENT BY : SH. VIJAY KR. JIWANI, SR. DR . ORDER PER H.S. SIDHU, JM THESE APPEALS ARE FILED BY THE ASSESSEE EMANATE OUT OF SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TA X (APPEALS)-41, NEW DELHI PERTAINING TO THE ASSTT. YEARS 2003-04 & 2006-07. S INCE THE COMMON ISSUES ARE INVOLVED IN THESE APPEALS, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 2257/DEL/2015 (AY 2003-04). I N BOTH THE APPEALS, THE ASSESSEE HAS RAISED AS MANY 07 GROUNDS OF APPEAL, B UT ONLY ARGUED THE COMMON ISSUE I.E. LD. CIT(A) HAS PASSED AN EXPARTE ORDER UPHOLDING THE LEVY OF PENALTY LEVIED BY THE AO AND NOT GIVING PROPER OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASSED A NON-SPEAKING ORDER. FOR THE SAKE OF BREVITY, THE DETAILED GROUNDS ARE NOT REPEATED HERE. 2 2. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL AND REQ UESTED TO SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, BECAUSE NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND T HE APPEAL OF THE ASSESSEE WAS DISMISSED ON ACCOUNT OF NON-PROSECUTION BY PAS SING A NON-SPEAKING ORDER. 3. LD. DR HAS OPPOSED THE REQUEST OF THE LD. COUNSE L OF THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT THERE IS NO DOUBT ASSESSEE REMAINE D NON-COOPERATIVE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS MENTIONED THE SAME IN HIS ORDER DATED 15.1.2015 VIDE PARA NO. 2.0 TO 5.0 AT PAGE NO. 1 TO 2, WHICH ARE REPRODUCED HEREUNDER:- 2. NONE PUT IN EFFECTIVE APPEARANCE ON BEHALF OF T HE ASSESSEE FOR THE HEARINGS FIXED ON THE GIVEN DATES, DESPITE ISSUE OF NOTICES BY REGISTERED POST/SPEED POST, AS DULY SERVED. A BR IEF SCHEDULE OF NON APPEARANCE OF THE ASSESSEE, IS AS FOLLOWS:- ISSUE OF NOTICE U/S 250 HEARING OF FIXED FOR RESPONSE OF THE APPELLANT 09.05.2014 05.06.2014 REQUEST FOR ADJOURNMENT FOR 20.06.2014, ON 20,06.2014 NONE ATTENDED 18.09.2014 28.10.2014 REQUEST FOR ADJOURNMENT FOR 28.11.2014, ON 18.11.2014 NONE ATTENDED 15.12.2014 14.01.2015 NONE ATTENDED 3 3. IT IS OBSERVED THAT DESPITE REPEATED NOTICES FIX ING THE CASE FOR HEARINGS IN THE APPEAL MATTER, THE APPELLANT HA S FAILED TO APPEAR ON THE GIVEN DATES INSTEAD OF PROVIDING DETAILS/SUBMISSIONS, THE APPELLANT HAS TAKEN ADJOUR NMENTS, AS ENUMERATED ABOVE. ALSO INSTEAD OF APPEARING ON THE ADJOURNED DATES, THE APPELLANT HAS CONTINUED TO SEEK FURTHER ADJOURNMENTS. THIS CLEARLY SHOWS THAT THE APPELLANT DOES NOT HAVE ANY INTENTION OF MAKING AN APPEARANCE AND DEFENDING ITS CASE. IT IS TAKING ADVANTAGE OF THE REVENUES GOODWILL OF PROVIDING OP PORTUNITY TO THE APPELLANT FOR PREPARING ITS CASE. IT WOULD ALSO NOT BE INCORRECT TO OBSERVE THAT THE APPELLANT APPEARS TO BE HABITUA L IN NON APPEARANCE ON GIVEN DATES OF HEARINGS. 4. THEREFORE, IT GIVES AN IMPRESSION THAT THE ASSES SEE IS NOT INTERESTED IN PRESSING ITS APPEAL. IT IS NOTED THAT IT HAS BECOME A FASHION IN PRESENT TIMES THAT APPELLANT OFTEN FILES APPEAL MERELY TO LOCK THE REVENUE OR TO KEEP THE ISSUES ALIVE IN APP EAL. I THEREFORE, HAVE NO OPTION BUT TO DISMISS THE APPEAL PREFERRED BY THE ASSESSEE. ON ACCOUNT OF NON APPEARANCE. MY DECISION IS ALSO CORROBORATED BY THE DECISION IN THE FOLLOWING CASES . . CIT V. MULTIPLAN (INDIA) (P) LTD. (1991) 38 ITD 320 (DEL) . ESTATE OF LATE TUKOJI RAO HOIKAR CWT (1997) 223 I TR 480 (MR) 5. ASSESSEES APPEAL STANDS DISMISSED. 5. AFTER GOING THROUGH THE AFORESAID FINDING OF TH E LD. CIT(A), WE ARE OF THE VIEW THAT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE REVENUE AUTHORITIES, BUT WE ARE OF THE OPINION THAT LD. CIT(A) HAS PASSED 4 THE EXPARTE ORDER WITHOUT DISCUSSING IN DETAIL THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO DID NOT DEAL THE ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER BY DISMISSING THE APPEAL OF THE ASSESSEE ON ACCOUNT OF NON- PROSECUTION. HOWEVER, IT IS A SETTLED LAW THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. 5.1 IN THIS REGARD WE DRAW SUPPORT FROM HONBLE A PEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE C ONSISTENT WITH THE RULES OF NATURAL JUSTICE. 5.2 WE FURTHER DRAW SUPPORT FROM THE APEX COURT D ECISION IN THE CASE OF KAPURCHAND SHRIMAL VS. CIT, 131 ITR 451 WHEREIN IT WAS HELD THAT THE APPELLATE AUTHORITY HAS JURISDICTION AS WELL AS THE DUTY TO CORRECT THE ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE OF NECESS ARY, APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION APPEAL IS P REFERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATTER AFRESH, UNLESS FORB IDDEN FROM DOING SO BY STATUTE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENTS, AS AFORESAID, WE REMIT BACK THE I SSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH, AFTER PASSING A SPEAKING ORDER AND AFTER CONSIDERING ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. HOWEVER, THE ASSESSEE IS DIRECTED THR OUGH HER AUTHORISED REPRESENTATIVE TO APPEAR BEFORE THE CONCERNED LD. COMMISSIONER OF INCOME TAX((APPEALS), NEW DELHI ON 10.08.2018 AT 10.00 AM AND FILE ALL THE EVIDENCES/DOCUMENTS ETC. BEFORE HIM TO SUBSTANTIATE HER CASE. THE ASSESSEE 5 IS ALSO DIRECTED NOT TO TAKE ANY UNNECESSARY ADJOUR NMENT. SINCE THIS DECISION HAS BEEN PRONOUNCED IN THE OPEN COURT, THERE IS NO NEED TO ISSUE THE NOTICE. 6.1 IN OTHER APPEAL I.E. ITA NO. 2258/DEL/2015 (AY 2006-07), THE FACTS ARE IDENTICAL AND EVEN THE RIVAL CONTENTION WERE SIMILA R, THEREFORE, OUR AFORESAID FINDINGS SHALL APPLY MUTATIS MUTANDIS FOR THIS APPEAL ALSO. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE STAND ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON 10-07-2018. SD/- SD/- [L.P. SAHU] [H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10/07/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT ( A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 6