M/s. Tinplate Dealers Associations (P) Ltd., New Delhi V. ITO, New Delhi

ITA 255/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5514 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 16-03-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K TIWARI
• Assessee Lawyers: M K AGGARWAL
• Keywords: Business income; Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NO. 255/DEL/2010 A.Y. 2006-07 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 255/DEL/2010 A.Y. : 2006-07 M/S TINPLATE DEALERS ASSOCIATION PVT. LTD. VS. I TO, WARD 16(3), 403, AVANTIKA, LSC AVENUE-21, NEW DELHI SAKET, NEW DELHI [PAN: AACCT0128P] (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.K. AGGARWAL, ADV. DEPARTMENT BY : SHRI V.K. TIWARI, CIT(DR) O R D E R PER SHAMIM YAHYA : AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A) DATED 04.12.2009 PERTAINING TO ASSESSMENT YEAR 2006 -07. 2. THE FIRST ISSUE RAISED IS THAT LD. CIT(A) DID N OT GIVE AN OPPORTUNITY OF BEING HEARD. THE ANOTHER ISSUE RAISED IS THAT LD.CIT(A) P ASSED AN ORDER WITHOUT APPRECIATING THE FACTS AND THE LEGAL ASPECTS INVOLV ED. 3. THE ASSESSEE IN THIS CASE HAS RECEIVED RS. 21,96 ,127/- FROM M/S TATA TELE SERVICES LTD. THE ASSESSEE HAS TREATED THE SAME A S BUSINESS RECEIPTS. HOWEVER, AO FOUND THAT THE NATURE OF RECEIPT FROM M/S TATA TELE SERVICES LTD. IN THE HANDS ITA NO. 255/DEL/2010 A.Y. 2006-07 2 OF THE ASSESSEE WAS THAT OF INCOME FROM HOUSE PROPE RTY. ACCORDINGLY, HE PROCEEDED TO ASSESS THE SAME AS INCOME FROM HOUSE P ROPERTY. 4. UPON ASSESSEES APPEAL LD. CIT(A) NOTED AT THE O UT SET THAT ENOUGH OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO APPEAR BEF ORE HIM OR FILE WRITTEN SUBMISSIONS, BUT THE ASSESSEE FAILED TO DO SO. ON THE MERITS OF THE CASE HE ORDERED AS UNDER:- 7.1 FROM THE FACTS BROUGHT ON RECORD, THE RECEIPTS IN QUESTION ARE CLEARLY RELATED TO LETTING OUT THE BUILDING/CONSTRU CTED SPACE. 7.2 SO LONG AS IT IS WITHIN THE LETTER OF THE LAW, RENTAL INCOME IS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPER TY AND PROVISIONS OF SECTION 22 TO 24 HAVE TO BE STRICTLY APPLIED. 7.3 RELIANCE IS PLACED ON THE FOLLOWING DECISION OF HONBLE ITAT. RAKESH BUILDERS VS. DY. CIT IN ITA NO. 2102/MUM/2 008, DATED 12.10.2009) (MUM-ITAT) 7.4 IN VIEW OF THE ABOVE DISCUSSION, THE ACTION OF THE AO IS JUSTIFIED. 5. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEF ORE US. 6. IT HAS BEEN URGED THAT LD. CIT(A) HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE IN AS MUCH AS PROPER OPPORTUNITY OF BEING HE ARD HAS NOT BEEN GIVEN. IT HAS FURTHER BEEN CLAIMED THAT LD. CIT(A) DID NOT PR OPERLY APPRECIATE THE FACTS OR THE LEGAL PROVISIONS INVOLVED. HE ALSO DID NOT C ONSIDER THE GROUNDS OF APPEAL RAISED, EXCEPT RELYING UPON THE JUDGEMENT QUOTED B Y THE ITO. IT HAS FURTHER BEEN CLAIMED THAT LD. CIT(A) HAS IGNORED THE HONB LE APEX COURT JUDGEMENT IN THIS REGARD. ITA NO. 255/DEL/2010 A.Y. 2006-07 3 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. A PERUSAL OF THE APPELLATE ORDER, MAKES IT CLEAR THAT THE SAME IS LACONIC AND NON-SPEAKING ORDER. IT HAS BEEN HELD BY THE HONBLE APEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTI CE. THIS MANDATES THAT THE APPELLATE ORDER SHOULD BE PASSED AFTER GIVING THE A SSESSEE PROPER OPPORTUNITY OF BEING HEARD AND THE SAME SHOULD BE A SPEAKING ONE . HENCE IN THE INTEREST OF JUSTICE THE ISSUES IN THE APPEAL ARE REMITTED TO THE FILES OF THE LD. CIT(A) TO CONSIDER THE SAME AFRESH AND PASS A PROPER AND SPEA KING ORDER. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUN ITY OF BEING HEARD. WE MAKE IT CLEAR THAT WE HAVE NOT CONSIDERED THE CASE ON MERITS IN ANY MANNER WHATSOEVER. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16/03/2010 U PON CONCLUSION OF THE HEARING. SD/- SD/- [A.D. JAIN) [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 16/03/ 2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ITA NO. 255/DEL/2010 A.Y. 2006-07 4 DEPUTY REGISTRAR, ITAT, DELHI BENCHES