M/s. Pukar Advertising & Marketing Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2532/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3526 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 13-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 25-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2532/DEL/2014 ASSESSMENT YEAR: 2006-07 M/S PUKAR ADVERTISING & MARKETING PVT. LTD., VS. ITO, WARD 14(4), C/O MUKUL RAJ & CO., NEW DELHI 20/15, FIRST FLOOR, CR BLDG., IP ESTATE, OLD MARKET, WEST PATEL NAGAR, NEW DELHI-2 NEW DELHI 11 0 008 (PAN: AADCP5712G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. C.S. ANAND, ADV. REVENUE BY : SH. F.R. MEENA, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 24.1.2014 OF THE LD. CIT(A)-XVII, NEW DELHI PERTA INING TO ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS ALSO FIL ED AN APPLICATION DATED 12.4.2017 STATING THEREIN THAT THE IMPUGNED O RDER IS THE ORDER DATED 24.1.2014 WHICH WAS PASSED BY THE LD. CIT(A)- XVII, NEW DELHI, WITHOUT HEARING THE ASSESSEE. IT WAS FURTHER MENTIONED THEREIN THAT LD. CIT(A) HAD NOWHERE MENTIONED IN THE BODY OF THE APPELLATE ORDER THAT SHE HAD ISSUED THE NOTICE(ES) OF HEARING TO THE ASSESSEE AND THE ASSESSEE HAD NOT MADE COMPLIANCE TO SUCH N OTICES ISSUED BY HER. IT WAS FURTHER STATED THAT THE ASSESSEE HA S NOW REALIZED THAT 2 THE GROUNDS OF APPEAL (WHICH WERE RAISED BY IT AT T HE TIME OF FILING OF APPEAL ON PRESCRIBED FORM NO. 36), WERE NOT PROPER AND HENCE NEEDS REVISION/MODIFICATION. ACCORDINGLY, THE ASSE SSEE HAS FILED THE REVISED GROUNDS OF APPEAL WHICH READ AS UNDER:- 1. THAT THE LD. CIT(A) HAS DENIED NATURAL JUSTICE TO T HE ASSESSEE, BY NOT ALLOWING PROPER OPPORTUNITY OF HEARING. 2. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, T HE LD. CIT(A) HAS ERRED IN DISMISSING THE ASSESSEES APPEAL, WITHOUT ENSURING AS TO WHETHER THE ASSESSEE HAD BEEN SERVED WITH ANY NOTICE OF HEARING OR NOT (IF AT ALL ANY NOTICE OF HEARING WAS ISSUED BY HER AND DISPATCHED BY HER OFFICE). 3. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 50,93,650/- (REPRESENTING THE TOTAL AMOUNT) OF SHA RE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM 14 PARTIES) WHICH WAS MADE BY THE AO VIDE ORDER DATED 30.12.2011 PASSED U/S. 143(3)/263. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE STATED THAT LD. CIT(A) HAS ERRED IN DISMISSING THE ASSESSEES A PPEAL, WITHOUT ENSURING AS TO WHETHER THE ASSESEE HAD BEEN SERVED WITH ANY NOTICE OF HEARING OR NOT. HE FURTHER STATED THAT ASSESSEE WAS NOT ALLOWED PROPER OPPORTUNITY OF HEARING BY THE LD. CIT(A), HE NCE, HE REQUESTED THAT ASSESSEE MAY BE GRANTED OPPORTUNITY TO APPEAR BEFORE THE LD. CIT(A) TO SUBSTANTIATE HIS CASE. HE UNDERTAKES TO APPEAR BEFORE THE LD. CIT(A) AND ENSURED THE BENCH THAT ASSESSEE OR H IS COUNSEL MAY NOT TAKE ANY UNNECESSARY ADJOURNMENT, IF THE ISSUE IN DISPUTE IS SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE S AME AFRESH. 4. ON THE CONTRARY, LD. DR STRONGLY OPPOSED THE RE QUEST OF THE ASSESSEES COUNSEL AND STATED THAT LD. CIT(A) HAS G IVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PROSECUTE ITS APPEAL , BUT ASSESSEE FAILED TO AVAIL THE SAME. HENCE, HE REQUESTED THA T THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDER OF THE LD. CIT(A), WE ARE OF T HE VIEW THAT LD. CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE ASSE SSEE FOR SUBSTANTIATING THE CLAIM BEFORE HIM. FOR THE SAKE O F CONVENIENCE, WE ARE REPRODUCING HEREWITH THE RELEVANT PARA NO. 4 A T PAGE NO. 5 OF THE IMPUGNED ORDER:- 4. DURING APPELLANT PROCEEDINGS, THE FIRST NOTICE WAS ISSUED TO THE APPELLANT ON 17.12.2012 FIXING THE CA SE FOR HEARING ON 13.02.2013. THE NOTICE WAS SENT BY SPEE D 4 POST AT THE ADDRESS GIVEN IN THE APPEAL MEMO. THERE WAS NO COMPLIANCE BY THE APPELLANT. AGAIN A FRESH NOTI CE WAS ISSUED ON 5.9.2013 FIXING THE CASE FOR HEARING ON 16.9.2013. BUT THE RESULT WAS THAT NONE ON BEHALF O F THE APPELLANT ATTENDED THE HEARING NOR ANY REQUEST FOR ADJOURNMENT WAS FILED. ON 12.11.2013, A NOTICE WAS ISSUED TO THE APPELLANT WHICH WAS RECEIVED BY SMT. PREM LATA MISHRA, COUNSEL OF THE ASSESSEE CALLING FOR HE ARING ON 22.11.2013. ON 22.11.2013, AN APPLICATION WAS FI LED BY THE APPELLANT SEEKING ADJOURNMENT. BUT AGAIN TH E APPELLANT MADE TO COMPLIANCE. AGAIN A FRESH NOTICE WAS ISSUED TO THE APPELLANT ON 09.01.2014 FIXING THE CA SE FOR HEARING ON 20.1.2014. BUT NO ONE ATTENDED. IT IS SEEN THAT THE APPELLANT IS IN THE HABIT OF NON COMPLIANC E TO NOTICES ISSUED. IN VIEW THEREFORE, I AM DECIDING TH E MATTER EX-PARTE ON THE BASIS OF DOCUMENT ON RECORD AND ON MERIT. 5.1 AFTER GOING THROUGH THE AFORESAID FINDINGS OF T HE LD. CIT(A), WE FIND THAT LD. CIT(A) HAS DECIDED THE ISSUE IN DISPU TE EXPARTE. IN THE INTEREST OF JUSTICE THE ISSUE IN DISPUTE REQUIRES T HOROUGH INVESTIGATION AND EXAMINATION AT THE LEVEL OF THE L D. CIT(A). HENCE, WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF TH E LD. CIT(A) WITH THE DIRECTIONS TO HIM TO DECIDE THE SAME AFRESH UNDER T HE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 5 5.2 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES AS EXPLAINED ABOVE AND THE NOTICES ISSUED BY THE LD. CIT(A) TO T HE ASSESSEE, THE ASSESSEE REMAINED NON-COOPERATIVE. WE PUT A QUESTI ON TO THE LD. COUNSEL OF THE ASSESSEE FOR AWARDING THE COST ON T HE ASSESSE ON ACCOUNT OF NON-APPEARANCE BEFORE THE LD. CIT(A) AND HE AGREED TO PAY THE COST. ACCORDINGLY, WE AWARD RS. 10,000/- (RUPEES TEN THOUSAND ONLY) AGAINST THE ASSESSEE WHICH IS TO BE PAID BY THE ASSESSEE TO THE DEPARTMENT AND PRODUCE THE COPY REC EIPT/ CHALLAN TO THE LD. CIT(A) AND APPEAR BEFORE THE LD. CIT(A) ON 20.07.2017 AT 10.00 AM AND WILL REMAIN COOPERATIVE IN THE PROCEEDINGS AND NOT TO TAKE UNNECESSARY ADJOURNMENT. LD. CIT\(A) IS ALSO DIRECTED TO DECIDE THE ISSUE IN DISPUTE AFRESH, AS PER LAW, AF TER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 18-04-2017. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18-04-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.