Sh. Hanuman Parsad Saraf, Bhiwani V. ACIT, Bhiwani

ITA 2500/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6905 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 22-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDER DUBEY
• Assessee Lawyers: NK JAIN; PAWAN JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Difference of opinion; Non compliance; Change of opinion
• Section: 243B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2500/DEL/2016 ASSESSMENT YEAR: 2009-10 SH. HANUMAN PARSAD SARAF VS. ACIT, BHIWANI ASIRWAD, INCOME TAX OFFICE, NEAR CITY POLICE STATION, HUDA COMPLEX, GALI CHIRPAL, BHIWANI-127021 CITY CENTRE HARYANA BHIWANI-127021 (PAN: AUJPS2854H) HARYANA (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. PAWAN JAIN, ADV. & SH. N.K. JAIN, ADV. REVENUE BY : SH. UMESH CHANDER DUBEY, SR.DR DATE OF HEARING ON : 22/09/2016 ORDER PRONOUNCED ON : 22/09/20 16 PER H.S. SIDHU, JM ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 15.3.2016 PASSED BY THE LD. CIT(A), FARIDABAD RELAT ING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A) HAS GONE WRONG IN DISMISSIN G THE APPEAL IN A SUMMARY MANNER FOR WANT OF APPEARANCE O F APPELLANT, WITHOUT CONSIDERING THE STATEMENT OF FAC TS AND THE LAW EXPLAINED THEREIN WITHOUT ADJUDICATING ALL THE GROUNDS OF APPEAL AND BY ADJUDICATING THE GROUNDS S HOULD HAVE HELD:- 2 (I) THAT THE INITIATION OF REASSESSMENT PROCEEDIN GS WAS ON ACCOUNT OF CHANGE OF OPINION AND WAS NOT VALID I N LAW. (II) THAT THE DISALLOWANCE OF EXPENDITURE OF RS. 1,87,205/- WAS AGAINST LAW. (III) THAT RS. 9,44,1231- WAS NOT ASSESSABLE AS B USINESS INCOME IN CHANGE OF OPINION, INSTEAD OF CORRECTLY A SSESSED AS INCOME FROM CAPITAL GAIN (IV) CHARGING OF INTEREST ULS 243B WAS NOT VALID IN LAW. 2. THAT NON-COMPLIANCE OF NOTICE DATED 15/02/2016 F OR 29/02/2016 WAS NOT SERVED BEFORE THE DATE FIXED FOR HEARING DUE TO JAT AGITATION IN HARYANA AND NOTICE DATED 113/2016 FOR 14/0312016 WAS ALSO NOT DELIVERED TO T HE APPELLANT OR HIS COUNSEL AND THEY WERE NOT AWARE OF THE DATE OF HEARING IF THE NOTICE IF WOULD HAVE BEEN DE LIVERED THERE WOULD HAVE BEEN NO NON COMPLIANCE BECAUSE THE COUNSEL OF THE ASSESSEE ON THAT DATE APPEARED BEFOR E THE LD. CIT(A) ON 14/03/2016 IN ANOTHER APPEAL, NON APPEARANCE WAS NOT INTENTIONAL BUT WAS ON ACCOUNT O F NON RECEIPT OF NOTICE BY APPELLANT OR HIS COUNSEL. 3. THE LD. CIT(A) WAS NOT THE JURISDICTIONAL CIT(A ) AND THE ASSESSEE HAD NO INFORMATION REGARDING THE TRANSFER OF APPEAL WITHOUT ANY OPPORTUNITY FOR HEARING. 4. THAT THE APPELLANT CRAVE LEAVE TO ADD AMEND OR RESCIND ANY GROUND OF APPEAL ON OR BEFORE HEARING THE APPEAL. IN THE CIRCUMSTANCE THE APPEAL MAY KINDLY BE ALLOWE D. 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. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY, HENCE, THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE S AME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEA RD. HE HIMSELF MADE A STATEMENT THAT HE WILL APPEAR BEFORE THE LD. CIT( A), AS AND WHEN THE BENCH DIRECTED TO DO SO. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE. 5. I HEARD BOTH THE PARTIES AND PERUSED THE RECORD S. I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER AND I FIND THAT LD. CIT(A) HAS ISS UED THE NOTICE TO THE ASSESSEE, BUT THE ASSESSEE DID NOT ATTEND THE PROCE EDINGS. FOR READY REFERENCE, I AM REPRODUCING THE RELEVANT PARA NOS. 4 TO 6 OF THE IMPUGNED ORDER AS UNDER:- 4. DURING THE COURSE OF APPELLATE PROCEEDINGS, A N UMBER OF OPPORTUNITIES PROVIDED-TO THE APPELLANT, BUT THEY R EMAINED UN-COMPLIED WITH. THE FOLLOWING CHART PROVIDES THE DETAILS OF T HE OPPORTUNITIES PROVIDED TO THE APPELLANT DURING THE COURSE OF APPE LLATE PROCEEDINGS. DATE EVENT 15.02.2016 NOTICE U/S 250 WAS ISSUED FOR 29.02.201 6. 29.02;2016 NONE ATTENDED NOR ANY WRITTEN SUBMISSIO NS WERE FILED. 01.03.2016 FRESH NOTICE ISSUED FOR HEARING ON 14.0 3.2016. 14.03.2016 NONE ATTENDED NOR ANY WRITTEN SUBMISSIO N WERE FILED. AS IS EVIDENT FROM THE PREVIOUS PAGES THE APPELLAN T HAS BEEN GIVEN MORE THAN SUFFICIENT OPPORTUNITIES AND NOTICE S BUT THE APPELLANT 4 HAS FAILED TO SUBSTANTIATE HIS CLAIM IN ANY MANNER. BOTH THE NOTICES WERE SERVICED ON THE APPELLANT, WHICH IS EVIDENT FR OM THE FACT THE NOTICES HAVE NOT BEEN RETURNED BACK TO THIS OFFICE. MOREOVER IN THE NOTICE THE APPELLANT WAS GIVEN THE OPPORTUNITY TO SEND HIS WRITTEN SUBMISSIONS THROUGH EMAIL, EVEN THEN THE ADJOURNMENT APPLICATIO N OR WRITTEN SUBMISSIONS HAVE NOT BEEN RECEIVED. THE RELEVANT PA RT OF THE NOTICE IS AS BELOW: IF YOU ARE NOT INTERESTED TO BE PRESENT, YOU ARE REQUESTED TO SEND YOUR WRITTEN SUBMISSIONS ON MY EMAIL [e-mail] . THIS IS THE LAST OPPORTUNITY WHICH IS GIVEN TO YOU. IN THIS REGARD NO ADJOURNMENT WILL BE GIVEN. IF NO RESPONSE IS RECEIVED FROM YOU SIDE, THEN YOU R CASE WILL BE DECIDED ACCORDING TO PAPERS PLACED ON FILE. (W RITTEN IN HINDI) 6. HENCE, AFTER A CAREFUL CONSIDERATION OF THESE FA CTS ON RECORD, AND IN THE ABSENCE OF ANY REBUTTAL OFFERED BY THE APPELLAN T DESPITE REPEATED OPPORTUNITIES DURING THE COURSE OF APPELLATE PROCEE DINGS, I HOLD THAT THE ADDITION HAS BEEN RIGHTLY MADE BY THE AD ON ACCOUNT OF INCOME FROM OTHER SOURCES IN THE ABSENCE OF THE APPELLANT FURNI SHING ANY BOOKS OF ACCOUNTS, BILLS VOUCHERS ETC. BEFORE THE AD. THUS I N VIEW OF THESE FACTS, THE APPEAL OF THE APPELLANT IS DISMISSED. 7. IN THE RESULT, THE APPEAL IS DISMISSED. 6. KEEPING IN VIEW OF THE NOTICE ISSUED TO THE ASSE SSEE AND THE TIME GRANTED BY THE LD. CIT(A) TO THE ASSESSEE, I AM OF THE VIEW THAT SUFFICIENT OPPORTUNITY HAS NOT BEEN GIVEN BY THE L D. FIRST APPELLATE AUTHORITY TO THE ASSESSEE FOR SUBSTANTIATING ITS C LAIM BEFORE THE LD. CIT(A) WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW AND AGAINST THE NATURAL JUSTICE. HENCE, I AM OF THE VIEW THAT IN T HIS CASE THE ISSUES IN DISPUTE NEEDS TO BE REMITTED BACK TO THE FILE OF TH E LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LAW. ACCORDINGLY, THE ISS UES IN DISPUTE ARE 5 SET ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT(A) AND THE LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUES IN DISPUT E AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THEREFORE, AS REQUESTED BY THE LD. COUNSEL OF THE ASSESSEE, THE ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO BE PRESENT BEFORE T HE LD. CIT(A) ON 27.10.2016 AT 10.00 AM AND FULLY COOPERATE WITH THE LD. CIT(A), DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FILE ALL T HE NECESSARY PAPERS BEFORE HIM TO SUBSTANTIATE HIS CASE. IT IS MADE CLEAR THAT NO NOTICE SHALL BE ISSUED TO THE ASSESSEE, BECAUSE THI S ORDER HAS BEEN PRONOUNCED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/09/2016 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 22/09/2016 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