M/s. Kopal Papers (P) Ltd., New Delhi V. ITO, New Delhi

ITA 2367/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4499 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Opportunity of being heard
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 236 7/DEL./2017 : ASSTT. YEAR : 2007-08 KOPAL PAPERS (P) LTD. C/O. M/S. RRA TAXINDIA, D-28, SOUTH EXTENSION PART-I NEW DELHI PAN-AACCK7281L VS. ITO WARD-14(4), NEW DELHI [APPELLANT] [RESPONDENT] APPELLANT BY : SH.SOMIL AGARWAL, ADV. RESPONDENT BY : SH. T. VASANTHAN, SR. D.R. DATE OF HEARING: 23 08 2017 DATE OF PRONOUNCEMENT: 28 09 2017 O R D E R PER DIVA SINGH, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 16.02.2017 OF CIT(A)-5 , NEW DELHI PERT AINING TO 2007-08 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO. 1 WHICH READ A S UNDER : THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED REASSESSMENT ORDER U/S 147/143(3) AND THAT TOO WITH OUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING WITH THE MANDATORY CONDIT IONS U/S 147 TO 151 AS ENVISAGED UNDER THE INCOME TAX ACT, 1961. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED RE-ASSESSM ENT ORDER U/S 147/143(3), IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. AR INVITING ATTENTION TO THE SPECIFIC GR OUND SUBMITTED THAT THE ARGUMENTS IN SUPPORT OF THE SAID GROUNDS HAVE BEEN ADDRESSED IN PARA 3.5 AS WRITTEN SUBMISSIONS OF THE ASSESSEE BEFORE THE CIT(A) HAVE BEEN REPRODUCED BY THE CIT(A ) IN HIS ORDER. FURTHER SUBMISSIONS THEREON HAVE ALSO BEEN REPRODUCED IN PARA 3.6.4 OF HIS ORDER BUT THE FACT REMAINS THAT JURISDICTIONAL ISSUE HAS NOT BEEN DECIDED BY THE C IT(A). IT WAS HIS SUBMISSION THAT IN FACT BOTH THE ISSUES I.E. THE ISSUE ON THE MERITS OF THE ADDI TION AS WELL AS THE JURISDICTIONAL ISSUE HAS BEEN CONSIDERED TOGETHER BY THE CIT(A). CONSEQUENTLY A S PECIFIC FINDING COULD NOT BE GIVEN. IN THE CIRCUMSTANCES, IT WAS HIS PRAYER THAT SINCE THE JUR ISDICTIONAL ISSUE GOES TO THE ROOT OF THE ASSESSMENT ORDER, THE SAID ISSUE SHOULD HAVE BEEN D ECIDED FIRST. ACCORDINGLY IT WAS A LIMITED PRAYER THAT THE ISSUE MAY BE RESTORED THAT THE CIT( A) TO FIRST CONSIDER THE JURISDICTIONAL ISSUE. 3. LD. SR. DR CONSIDERING THE IMPUGNED ORDER HAD N O OBJECTION IF THE MATTER IS REMANDED TO THE CIT(A) FOR DECIDING THE JURISDICTIONAL ISSUE FI RST. ITA 2367/DEL/2017 PAGE 2 OF 2 4. I HAVE HEARD THE SUBMISSION AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. THE LAW IS WELL SETTLED IN AS MUCH AS THAT IN CASE THE JURISDICTION AL ISSUE IS RAISED BY A PARTY, THEN THE SAID ISSUE SHOULD BE NECESSARILY FIRST DECIDED AS THE ISSUE ON MERIT WILL BECOME LIVE ONLY IF ON JURISDICTION THE ORDER IS HELD TO BE MAINTAINABLE. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSION OF THE PARTY BEFORE THE BENCH, I AM OF THE VIEW THAT IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER IN TOTO. THE APPEAL, ACCORDINGLY IS RESTORED BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO FIRST DECIDE THE JURISDICTIONAL ISSUE AND THEREAFTER TO PROCEED TO DECIDE THE ISSUE ON MERIT IF NEED BE. NEEDLESS TO SAY THAT A REASONA BLE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED TO BE ASSESSEE. WHILE SO DIRECTING IT IS HO PED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AND IS UTILISED BY MAKING FU LL AND PROPER COMPLIANCES BEFORE THE CIT(A). IN THE EVENTUALITY OF ABUSE OF THE SAME, T HE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPT., 2017) SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 28 . 09.2017 *BINITA(DELHI)/POONAM(CHD)* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGIST RAR