Sh. Rakesh Chhabra, Delhi V. ITO, New Delhi

ITA 2363/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6737 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 09-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 22-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2363/DEL/2015 ASSESSMENT YEAR: 2007-08 SH. RAKESH CHHABRA, VS. ITO, WARD-14(2), D-129, ASHOK VIHAR, PHASE-I, NEW DELHI DELHI 110 052 (PAN: ACXPC4843L) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. ABHISHEK MATHUR, ADV. REVENUE BY : SH. RAKESH KUMAR, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 02.2.2015 PASSED BY THE LD.CIT(A)-7, DELHI RELATING TO ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN THE LAW AS MUCH AS ON THE FACTS OF THE CAS E BY SUSTAINING TO UNWARRANTED ADDITION OF RS. 19,11,872 /- MADE BY THE LEARNED ASSESSING OFFICER U/SEC. 2(22)( E) OF THE INCOME TAX ACT, 1961. 2. THAT THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL S) WHILE SUSTAINING THE AFORESAID UNWARRANTED ADDITION S OF RS.19, 11 ,782/- HAS ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE BY NOT CONSIDERING THE WRITTEN 2 SUBMISSIONS FILED BY THE APPELLANT BEFORE THE HON'B LE COMMISSIONER OF INCOME TAX (APPEALS) ON 22.08.2014 WHERE THE FACTUAL POSITION OF THE IMPUGNED TRANSACT IONS WITH M/S R. CUBE INTERNATIONAL AND M/S PERFECT PARADISE EMPORIUM PVT. LTD. HAVE BEEN EXPLAINED IN DETAILS. IN THIS MANNER, THE HON'BLE COMMISSIONER O F INCOME TAX (APPEALS) HAS PASSED THE IMPUGNED ORDER BY IGNORING THESE SUBMISSIONS, THEREFORE, THE ORDERS P ASSED IN THE CASE OF THE ABOVE APPELLANT ARE NOT SUSTAINA BLE IN LAW AND VOID AB-INITIO. 3. THAT THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) IN PARA 6.2 OF THE APPELLATE ORDER HAS RE FERRED THE LETTER DATED 30TH OCT, 2012 FILED BY THE APPELLANT ADDRESSED TO THE LEARNED INCOME TAX OFFICER, WARD 1 4(2), NEW DELHI WHEREFROM SHE HAS QUOTED PARA-4 OF THE SA ID LETTER. THIS PARA HAS BEEN MISUNDERSTOOD BY HER RES ULTING THEREBY SHE HAS TAKEN WRONG CONCLUSION AND HAS ERRONEOUSLY UPHELD THE ADDITIONS OF RS.19,1L,782/- WHICH IS NOT ONLY BAD IN LAW BUT AGAINST THE PRINCIPLES O F NATURAL JUSTICE SINCE THE APPELLANT WAS NEVER CONFRONTED TO THIS LETTER DURING THE COURSE OF HEARING OF THE APPEAL B Y THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS). 4. THAT THE LEARNED HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRONEOUSLY UPHELD THE LEVY OF PE NALTY U/SEC. 271 (L)( C) OF THE ACT WITHOUT APPRECIATING THAT THE ALLEGED ADDITIONS OFRS.19,11,782/- U/SEC. 2(22)(E) IS A DEEMING ADDITIONS WHERE NO PENALTY IS LEVIABLE U/SE C. 271(L)(C) OF THE ACT. 3 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 BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 53 CONTA INING THE WRITTEN SUBMISSIONS FILED BEFORE THE CIT(A) ON 22.8.2014; C OPY OF RETURN OF INCOME OF SH. RAKESH CHHABRA FOR THE ASSESSMENT YEA R 2007-08; COPY OF NOTICE U/S. 148 OF THE INCOME TAX ACT, 1961; REP LY OF NOTICE U/S. 148 OF THE INCOME TAX ACT, 1961 DATED 23.4.2012; CO PY OF REASONS RECORDED FOR REOPENING THE ASSESSMENT OF ASSESSMENT YEAR 2007-08 U/S. 148 OF THE ACT; COPY OF NOTICES U/S. 142(1) A ND U/S. 143(2) ALONGWITH THE DETAILED QUESTIONNAIRE DATED 24.7.201 2; REPLY DATED 30.10.2012 FILED BY THE ASSESSEE TO THE QUESTIONNAI RE DATED 24.7.2012; COPY OF ASSESSMENT ORDER OF M/S PERFECT PARADISE EM PORIUM FOR ASSESSMENT YEAR 2007-08 DATED 31.12.2009 U/S. 143(3 ) OF THE ACT; COPY OF REJECTION LETTER REJECTING THE OBJECTION TO ASSUMPTION U/S. 147/148 DATED 20.11.2012; COPY OF AUDITED BALANCE S HEET OF M/S PERFECT PARADISE EMPORIUM FOR THE FINANCIAL YEAR EN DED 31 ST MARCH, 2007; COPY OF BALANCE SHEET OF M/S R CUBE INTERNATI ONAL FOR THE PERIOD ENDED 31.3.2007 AND ALSO THE COPY OF INCOME TAX RET URN FOR THE ASSESSMENT 2007-08. HE FURTHER STATED THAT IN PARA 6.2 OF THE APPELLATE ORDER LD. CIT(A) HAS REFERRED THE LETTER DATED 30TH OCT, 2012 FILED BY THE ASSESSEE ADDRESSED TO THE INCOME TAX O FFICER, WARD 14(2), 4 NEW DELHI WHEREFROM SHE HAS QUOTED PARA-4 OF THE SA ID LETTER. THIS PARA HAS BEEN MISUNDERSTOOD BY HER RESULTING THEREB Y SHE HAS TAKEN WRONG CONCLUSION AND HAS ERRONEOUSLY UPHELD THE ADD ITIONS OF RS.19,1L,782/- WHICH IS NOT ONLY BAD IN LAW BUT AGA INST THE PRINCIPLES OF NATURAL JUSTICE SINCE THE ASSESSEE WAS NEVER CON FRONTED TO THIS LETTER DURING THE COURSE OF HEARING OF THE APPEAL BY THE L D. COMMISSIONER OF INCOME TAX (APPEALS). IN VIEW OF THE ABOVE, HE REQ UESTED THAT THE ISSUES INVOLVED IN THE PRESENT APPEAL MAY BE SET AS IDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. . 5. I HEARD BOTH THE PARTIES AND PERUSED THE RECORDS . I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE PAPER BOOK CONTAINING 1 TO PAGES 53 CONTAINING THE COPY OF WRITTEN SUBMISSIONS FILED BE FORE THE CIT(A) ON 22.8.2014; COPY OF RETURN OF INCOME OF SH. RAKESH C HHABRA FOR THE ASSESSMENT YEAR 2007-08; COPY OF NOTICE U/S. 148 OF THE INCOME TAX ACT, 1961; REPLY OF NOTICE U/S. 148 OF THE INCOME T AX ACT, 1961 DATED 23.4.2012; COPY OF REASONS RECORDED FOR REOPENING T HE ASSESSMENT OF ASSESSMENT YEAR 2007-08 U/S. 148 OF THE ACT; COPY OF NOTICES U/S. 142(1) AND U/S. 143(2) ALONGWITH THE DETAILED QUEST IONNAIRE DATED 24.7.2012; REPLY DATED 30.10.2012 FILED BY THE ASSE SSEE TO THE 5 QUESTIONNAIRE DATED 24.7.2012; COPY OF ASSESSMENT O RDER OF M/S PERFECT PARADISE EMPORIUM FOR ASSESSMENT YEAR 2007- 08 DATED 31.12.2009 U/S. 143(3) OF THE ACT; COPY OF REJECTIO N LETTER REJECTING THE OBJECTION TO ASSUMPTION U/S. 147/148 DATED 20.11.20 12; COPY OF AUDITED BALANCE SHEET OF M/S PERFECT PARADISE EMPOR IUM FOR THE FINANCIAL YEAR ENDED 31 ST MARCH, 2007; COPY OF BALANCE SHEET OF M/S R CUBE INTERNATIONAL FOR THE PERIOD ENDED 31.3.2007 A ND ALSO THE COPY OF INCOME TAX RETURN FOR THE ASSESSMENT 2007-08. I FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE LD. COUNSEL OF T HE ASSESSEE THAT IN PARA 6.2 OF THE APPELLATE ORDER LD. CIT(A) HAS REFE RRED THE LETTER DATED 30TH OCT, 2012 FILED BY THE ASSESSEE ADDRESSED TO T HE INCOME TAX OFFICER, WARD 14(2), NEW DELHI WHEREFROM SHE HAS QU OTED PARA-4 OF THE SAID LETTER, MISUNDERSTOOD BY HER RESULTING THE REBY SHE HAS TAKEN WRONG CONCLUSION AND HAS ERRONEOUSLY UPHELD THE ADD ITIONS OF RS.19,1L,782/- WHICH IS NOT ONLY BAD IN LAW BUT AGA INST THE PRINCIPLES OF NATURAL JUSTICE SINCE THE ASSESSEE WAS NEVER CON FRONTED TO THIS LETTER DURING THE COURSE OF HEARING OF THE APPEAL BY THE L D. COMMISSIONER OF INCOME TAX (APPEALS). IN VIEW OF THE ABOVE THE SAID DOCUMENTS NEEDS TO BE EXAMINED AT THE LD. CIT(A) IN ORDER TO DECIDE THE ISSUES IN DISPUTE WHICH HE HAS NOT BEEN CONSIDERED. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT IN THIS CASE THE ISSUES IN DISPUTE NEEDS TO BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SA ME AFRESH, AS PER LAW. 6 ACCORDINGLY, THE ISSUES IN DISPUTE ARE SET ASIDE AN D RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO CONSIDER THE ISSUES I N DISPUTE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/02/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 10/02/2017 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