Naresh Chand, New Delhi V. ACIT circle-18(1), New Delhi

ITA 2326/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8608 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR CHOPRA
• Assessee Lawyers: MANU K GIRI
• Keywords: Opportunity of being heard; Set aside
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2326/DEL/2019 [ASSESSMENT YEAR: 2010-11] SH. NARESH CHAND, VS. ACIT, CIRCLE -18 (1), R-64/C-2, H.NO. 37, NEW DELHI SECTOR-40, NOIDA UTTAR PADESH (PAN: APVPC5557N) [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. MANU K. GIRI, ADV. REVENUE BY : SH. MANOJ KUMAR CHOPRA, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS]-1, NEW DELHI D ATED 28.09.2018 PERTAINING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOW ING GROUNDS:- 1. THE LD. CIT(A)-3 HAS NOT PROVIDED THE PROPER OPPORT UNITY TO YOUR PETITIONER. IN HIS ORDER DATED 28.9.2018, L ETTER FOR ADJOURNMENT DATED 25/7/2018 OF OTHER ONE NARESH CHA ND (APPEAL NO. 296/17-18/NOIDA HAS WRONGLY TAKEN AS FI LLED BY YOUR PETITIONER (APPEAL NO. 466/E-FILE/2017-18/N OIDA). 2. APPLICATION DATED 12.6.2018 FOR RECTIFICATION U/S. 154 OF THE INCOME TAX ACT IS FILED BEFORE THE ASSESSING OFFICE R, WARD 2(3), SECTOR-24, NOIDA AND LD. CIT(A) HAS NOT CONS IDERED THE FACTS OF THE CASE. 3. THE LD. CIT(A) IN HIS ORDER DATED 28.9.2018 IN POIN T NO. 16 THAT RETURN OF INCOME OF THE APPLICANT IS NOT ON TH E RECORD EITHER THE LD. AO OR HIS OFFICE. THE APPLICANT HAS SUBMITTED THE RETURN OF INCOME TO THE AO AND COPY OF THE SAME IS ALSO FILED BEFORE THE LD. CIT(A). THE FACT THE RE TURN 2 INCOME AS WELL AS DEPOSITED THE TAX AND INTEREST AS PER HARD COPY OF RETURN OF INCOME. 4. THAT THE LD. CIT(A) HAS WRONGLY TAKEN THE GROUNDS T HAT ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF SE CTION 249(4)(B) OF THE ACT WHEREAS YOUR PETITIONER HAS DE POSITED THE COMPLETE TAX AND INTEREST AS PER THE HARD COPY OF RETURN INCOME FILED BEFORE THE AO AS WELL AS TO LD. CIT(A). 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HARING LD. COUNSEL FOR THE ASSESS EE STATED THAT LD. CIT(A) HAS DECIDED THE ISSUES AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATI NG THE CLAIM BEFORE THE REVENUE AUTHORITIES, IF THIS BENCH GRANTS AN OPPORT UNITY TO THE ASSESSEE TO DO THE SAME. HE REQUESTED THAT AO HAS ALSO COMPL ETED THE ASSESSMENT U/S. 144/147 OF THE I.T. ACT, 1961 AND HAS NOT PRO VIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING THE CLAIM. HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE ASSESSING OFFICER TO DECIDE THE SAME, AFRESH, AS PER LAW, AFTER GIVING O PPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS FOR PRODUCTION OF ALL THE N ECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. LD. COUNSEL FOR THE ASSESSEE STATED THAT LD. CIT(A) HAS PASSED SOME ADVERSE REMARKS AGAINST MS. ASHIMA NEB, SR. DR/ADDL . CIT OF THE DEPARTMENT AND HE HAS NO OBJECTION, IF THESE ADVE RSE REMARKS ARE EXPUNGED BY THE BENCH, BECAUSE THE LD. COUNSEL FOR THE ASSESSEE HAS NO OBJECTION AND GRIEVANCE AGAINST THE SAID OFFICER. 4. LD. DR HAS NO OBJECTION ON THE REQUEST OF THE LD . COUNSEL FOR THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORD ER DATED 28.9.2018, I FIND THAT LD. CIT(A) HAS DECIDED THE ISSUES IN DISP UTE AGAINST THE ASSESSEE 3 WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE AS SESSEE AS WELL AS FOR PRODUCTION OF THE NECESSARY EVIDENCES BEFORE HIM. LD. COUNSEL FOR THE ASSESSEE HAS ALSO FILED THE PAPER BOOK CONTAINING P AGES 1-106 IN WHICH HE HAS ATTACHED THE COPY OF LETTER DATED 12.6.2018 U/S. 154 OF THE ACT ALONGWITH ANNEXURE (A) STATEMENT OF INCOME/ ANNEXUR E B SALARY CERTIFICATE (FORM 16)/ ANNEXURE C ITR2 RETURN/ ANNE XURE D TAX PAID CHALLANS OF RS. 4,48,175/-/ ANNEXURE E TAX PAID CHA LLSN OF RS., 5,60,000/- (3)/ ANNEXURE F COST OF PROPERTY DETAILS/ ANNEXURE G EVIDENCE OF PROPERTY PURCHASE AND PAYMENT; ANNEXURE H ELECTION CARD OF W HOM PROPERTY PURCHASE; ANNEXURE I DETAIL OF INVESTMENT U/S. 54F; ANNEXURE K LETTER OF TAYAL ASSOCIATES AS LEGAL CONSULTANT; ANNEXURE L SB I BANK PASS BOKK 26.3.2009 TO 23.9.2010 AND CANARA BANK PASS BOOK 31 .7.2008 TO 29.8.2010 OF ASSESSEE; COPY OF LETTER DATED 11.12. 2017 FOR STAY AGAINST DEMAND OF RS. 22,40,868/- WITH CHALLAN OF RS. 4,.48 ,175/- OF THE INCOME TAX ACT; FIRST NOTICE DATED 18.7.2018 ISSUED BY LD. CIT FOR FIXED THE DATE OF HEARING ON 31.8.2018; COPY OF LETTER DATED 31.8. 2018 FILED BEFORE LD. CIT WITH DOCUMENTS NOTICE DATED 11.9.2018 ISSUED BY LD. CIT FOR FIXED THE DATE OF HEARING ON 25.9.2018; COPY OF REPLY LET TER DATED 25.9.2018 FOR ADJOURNMENT; COPY OF LETTER DATED 21.1.2019 FOR FIL E INSPECTION; COPY OF LETTER OF APPLICATION OF OTHER ONE NARESH CHAND HAV ING APPEAL NO. 296/17- 18 FILED ON 25.7.2018. I AM NOT COMMENTING UPON TH E MERITS OF THE CASE AS WELL AS ON THE DOCUMENTARY EVIDENCES. BUT, I AM OF THE VIEW THAT AO HAS ALSO PASSED THE ASSESSMENT ORDER U/S. 144/147 O F THE I.T. ACT, 1961 WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESE E FOR SUBSTANTIATING THE CLAIM. SIMILARLY, THE LD. CIT(A) HAS ALSO NOT GIVEN FULL OPPORTUNITY OF HEARING AND FOR PRODUCING THE NECESSARY EVIDENCES F OR SUBSTANTIATING THE CLAIM OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE ASSESSING OFFICE R FOR DENOVO PROCEEDINGS, BECAUSE THE DOCUMENTARY EVIDENCES FILED BY THE ASSE SSEE IN THE SHAPE OF PAPER BOOK MENTIONED ABOVE REQUIRES TH OROUGH EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER. NEEDLESS TO SAY THAT ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 4 5.1 AS REGARDS SOME ADVERSE REMARKS PASSED BY THE L D. CIT(A) AGAINST MS. ASHIMA NEB, ADDL. CIT/ SR. DEPARTMENTAL REPRESE NTATIVE. I HAVE THOROUGHLY GONE THE ADVERSE REMARKS PASSED AGAINST THE SAID LD. DR AND I AM OF THE VIEW THAT MS. ASHIMA NEB, SR. DR APPEAR ED MANY TIMES BEFORE THE UNDERSIGNED IN SMC BENCHES AS WELL AS DI VISION BENCHES AND FOUND THAT SHE IS VERY COMPETENT, KNOWLEDGEABLE AND ASSISTED THE BENCH AS PER HER FULL ABILITY AND LEGAL KNOWLEDGE AND ALS O FOUND HER BEHAVIOUR IS EXCELLENT. KEEPING IN VIEW HER WORK AND CONDUCT AN D THE ASSISTANCE TENDERED BY HER, I NEVER SEEN ANY NEGATIVE OR ADVER SE THING AGAINST MS. ASHIMA NEB, ADDL. CIT/SR. DR. I ALSO FAILED TO UND ERSTAND WHY LD. CIT(A) HAS SO MUCH AGAINST HER DESPITE THAT SHE HAS NOT AP PEARED AND ASSISTED HIM. EVEN OTHERWISE, ITAT HAS NOT PASSED ANY ADVER SE REMARKS AGAINST MS. ASHIMA NEB, SR. DR/ ADDL. CIT. 5.2 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCE S AS EXPLAINED ABOVE, THE QUESTION OF PASSING ADVERSE REMARKS BY T HE LD. CIT(A) AGAINST MS. ASHIMA NEB, SR. DR/ADDL. CIT DOES NOT ARISE, HE NCE, THE SAME IS HEREBY EXPUNGED, BECAUSE THE IMPUGNED ORDER IS NOT PASSED IN ACCORDANCE WITH LAW, THEREFORE, THE SAME IS ALSO CA NCELLED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 20.01.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:20-01-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI