Candor Gurgaon Two Developers & Project Pvt Ltd, Delhi V. DCIT Circle-27(1), New Delhi

ITA 2565/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3143 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 25-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SIMIT KUMAR VARMA
• Keywords: Opportunity of being heard; Set aside
• Section: 14A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A NO. 2565/DEL/2019 (ASSESSMENT YEAR: 2012-13) CANDOR GURGAON TWO DEVELOPERS & PROJECT PVT. LTD. 1005, ROOTS TOWER, PLOT NO. 7, LAXMI NAGAR, NEW DELHI. PAN NO. AAACU8404B VS. DCIT CIRCLE 27(1) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY SH. RISHABH MALHOTRA, AR RESPONDENT BY SH. SIMIT KUMAR VARMA, SR. DR DATE OF HEARING 21.10.2021 DATE OF PRONOUNCEMENT 22.10.2021 HEARING CONDUCTED VIA WEBEX ORDER PER DIVA SINGH, J.M. BY T HE PRESENT APPEAL THE ASSESSEE HAS ASSAILED THE COR RECTNESS OF THE ORDER DATED 11.02.2019 OF LD. CIT(A)-30 PERT AINING TO 2012-13 ASSESSMENT YEAR ON THE MERITS OF THE ADDITION SUSTA INED IN THE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(APPEALS). 2. AT THE TIME OF HEARING THE LD. AR HAD FILED AN A DJOURNMENT APPLICATION SEEKING TIME TO OBTAIN RELEVANT DOCUMEN TS. SINCE THE IMPUGNED ORDER IT WAS SEEN HAD BEEN PASSED EX PARTE WITHOUT HEARING THE ASSESSEE THE LD. AR WAS REQUIRED TO CONSIDER TH E REQUEST FOR ADJOURNMENT. ACCORDINGLY, THE APPEAL WAS PASSED OV ER DIRECTING THE LD. AR AND THE LD. SR. DR TO CONSIDER THE AFORESAID FAC T AVAILABLE ON RECORD. 3. IN THE NEXT ROUND THE LD. AR SUBMITTED THAT IN T HE FACTS OF THE PRESENT CASE THE ASSESSEE HAS ADMITTEDLY REMAINED U NREPRESENTED ITA NO.2565/DEL/2019 PAGE 2 OF 4 BEFORE THE FIRST APPELLATE AUTHORITY AND THOUGH HE HAS NO INSTRUCTIONS AS TO IN REGARD TO THIS LAPSE, HOWEVER, IT WAS HIS SUBMISSION THAT POSSIBLY NON APPEARANCE WAS ON ACCOUNT OF LACK OF N OTICE. IN THE CIRCUMSTANCES, IT WAS HIS HUMBLE PRAYER THAT IN CAS E THE IMPUGNED ORDER IS SET ASIDE TO THE LD. CIT(A) HE WOULD GIVE HIS ORAL UNDERTAKING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDI NGS. THE LD. AR WAS REQUIRED TO ADDRESS WHETHER THERE WAS ANY CHANGE IN THE ADDRESS MADE AVAILABLE TO THE CIT(A) AND BEFORE THE ITAT AS BOTH THE ADDRESSES APPEAR TO BE IDENTICAL. THE LD. AR SUBMITTED THAT IN CASE THERE IS ANY CHANGE HE WOULD BRING THIS FACT TO THE NOTICE OF THE APPRO PRIATE AUTHORITIES, HOWEVER, IT WAS SUBMITTED BY HIM THAT THE E-MAIL AD DRESS AS PROVIDED IN FORM NO. 36 IN THE APPELLANTS PERSONAL INFORMATION IS THE ADDRESS PROVIDED OF THE TAXATION MANAGER/DIRECTOR AND IS CO RRECT. THE SAME IS AS UNDER: - [e-mail] 4. THE REQUEST SEEKING TIME AND TO OBTAIN THE DOCUM ENTS IN THE CIRCUMSTANCES WAS ORALLY WITHDRAWN. THE LD. SR. DR ON CONSIDERING THE RECORD DID NOT POSE ANY OBJECTION TO THE REQUEST FO R REMAND OF THE IMPUGNED ORDER AS ADMITTEDLY IT WAS PASSED WITHOUT HEARING THE ASSESSEE. 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. IT IS SEEN THAT CERTAIN ADDIT IONS WERE MADE TO THE DECLARED INCOME OF THE ASSESSEE BY THE AO. THESE A DDITIONS WERE CHALLENGED IN APPEAL BEFORE THE CIT(A). HOWEVER, B EFORE THE CIT(A) THE ASSESSEE DID NOT PARTICIPATE AND IN THE CIRCUMSTANC ES THE ISSUES WERE CONSIDERED BY THE LD. CIT(A) ON THE BASIS OF THE MA TERIAL AVAILABLE ON RECORD AND THE ADDITIONS MADE STOOD CONFIRMED. AGG RIEVED BY THIS THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. THE FACTUAL BACKGROUND OF OPPORTUNITIES GIVEN AND ISSUES ARISING WERE ADDRESS ED BY THE CIT(A) IN THE FOLLOWING MANNER AT PAGE 5 OF HIS ORDER AS UNDE R: - ITA NO.2565/DEL/2019 PAGE 3 OF 4 4. IN THIS CASE NOTICE DATED 18.01.2019 WAS ISSUED FOR 29.01.2019. HOWEVER, NONE APPEARED ON THAT DATE. ANOTHER, NOTICE DATED 30.01.2019 WAS ISSUED ON 08.02.2019. HOWEVER , NONE APPEARED ON THAT DATE ALSO. IN VIEW OF THE AFORESAID NON-COMPLIANCE, I AM LEFT WITH NO ALTERNATIVE BUT TO PROCEED TO ADJUDICATE THE APPEAL ON THE BASI S OF MATERIAL AVAILABLE ON RECORD IN A JUDICIAL MANNER. IN THIS CASE INCOME RETURNED AT RS. 2,22,61,747/- H AS BEEN DETERMINED AT RS. 6,15,57,300/- VIDE ASSESSMENT ORD ER DATED 30.03.2016. GROUND NO. 1 IS GENERAL AND NEEDS NO S PECIFIC ADJUDICATION. GROUND NOS. 2, 3, 5 AND 6 RELATE TO DISALLOWANCE U/S 14A AND CONNECTED ISSUES. GROUND NO. 4 RELATES TO DISALLOWANCE PERTAINING TO SECTION 80IB OF THE INCOME TAX ACT, 1 961. 6. SIMILARLY IT IS SEEN THAT LACK OF REPRESENTATION AND CONSEQUENTIAL LACK OF REBUTTAL ON FACTS WAS AGAIN NOTICED BY THE LD. CIT(A) IN PARA 5.2 (PAGE 8), PARA 6.2 (PAGE 12), PARA 7.2 (PAGE 15) AN D PARA 8.2 (PAGE 17). THUS, IN THE FACTS OF THE PRESENT CASE ADMITTEDLY T HE ASSESSEE WAS NOT HEARD. WITHOUT GETTING INTO THE ASPECT AS TO THE R EASONS FOR NON REPRESENTATION BEFORE THE FIRST APPELLATE AUTHORITY , IN THE LIGHT OF THE ORAL UNDERTAKING GIVEN BY THE LD. AR THE IMPUGNED O RDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFT ER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ORDER IS SET ASIDE IN THE INTERESTS OF SUBSTANTIAL JUSTICE. ALL NECES SARY SUPPORTING DOCUMENTS/SUBMISSIONS, EVIDENCES, ETC. RELIED UPON SHALL BE MADE AVAILABLE BEFORE THE FIRST APPELLATE AUTHORITY. WH ILE SO DIRECTING IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED IN THE ASSESSEE THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IN I TS OWN INTEREST IS DIRECTED TO ENSURE FULL AND PROPER PARTICIPATION BE FORE THE SAID AUTHORITY. SAID ORDER WAS PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF. ITA NO.2565/DEL/2019 PAGE 4 OF 4 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/10/2021 SD/- SD/- (O.P. KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *KAVITA ARORA, SPS COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT CONCERNED BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCHES: DELHI.