Mukul Agarwal, Bulandshahr V. ITO, Ward- 3(2), Bulandshahr

ITA 2605/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6215 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 142(1); 234B; 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2605/DEL/2019 ASSESSMENT YEAR: 2009-10 SH. MUKUL AGARWAL, VS. INCOME TAX OFFICER, C/O M/S RRA TAXINDIA WARD-3(2), BULANDSHAHR D-28, SOUTH EXTENSION, PART-I NEW DELHI (PAN:ADOPA3844M) (ASSESSEE) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, ADV & SH. SOMIL AGARWAL, ADV REVENUE BY : MS. PARUL SINGH, SR. DR ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE IM PUGNED ORDER DATED 18.01.2019 PASSED BY THE LD. CIT(A), GHAZIABAD RELA TING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DECIDING THE APPEA L IN LIMINE BY TREATING IT AS HAVING BEEN FILED DELAYEDLY AND HENCE AS NON- EST BEING DEFECTIVE AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDI NGS AND IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN TREATING THE APPEAL OF ASSESSEE AS DELAYED APPEAL A ND HENCE NON-EST BEING DEFECTIVE, IS BAD IN LAW AND AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE I MPUGNED REASSESSMENT ORDER U/S 144/147 AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING WITH MANDATORY CONDITIONS U/S 147 TO 151 AS ENVISAGED UNDER THE INCOME TAX AC T. 1961. 2 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN NOT QUASHING THE IMPUGNED REASSESSMENT ORDER U/S 14 4/147, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE I MPUGNED REASSESSMENT ORDER PASSED BY LD. AO U/S 144/147 AND THAT TOO WIT HOUT SERVING THE MANDATORY NOTICES U/S 148 AND 142(1) OF LNCOME TAX ACT, 1961. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. C1T(A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETIN G THE ADDITION OF RS. 11,38,000/- MADE BY LD. AO ON ACCOUNT OF CASH DEPOS ITS BY TREATING IT AS ALLEGED UNEXPLAINED CASH CREDIT U/S 69 AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT OBSERVING THE PRINCI PLES OF NATURAL JUSTICE. 7. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN NOT DELETING THE ADDITION OF RS. 11,38,000/- MADE B Y LD. AO ON ACCOUNT OF CASH DEPOSITS BY TREATING IT AS ALLEGED UNEXPLAINED CASH CREDIT U/S 69, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUND S. 8. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234A AND 234B OF THE INCOME T AX ACT, 1961. 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED T HE ISSUES IN DISPUTE AGAINST THE ASSESSEE EX PARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND HE REQUESTED THAT THE I SSUES IN DISPUTE MAY BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. LEARNED DR FOR THE REVENUE DID NOT RAISE ANY OBJ ECTION ON THE REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER, I AM OF THE CONSIDERED 3 VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS DEC IDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE BY PASSING A NON SPEAKING AND EX PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WHIC H IS CONTRARY TO LAW AND FACTS ON THE FILE AND LIABLE TO BE CANCELLED. THERE FORE, IN THE INTEREST OF JUSTICE, I AM CANCELLING THE IMPUGNED ORDER AND SET TING ASIDE THE ISSUES IN DISPUTE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. KEEPING IN VIEW THE NON COOPERATION OF THE ASSES SEE BEFORE THE REVENUE AUTHORITIES, I AM DIRECTING THE ASSESSEE TH ROUGH HIS COUNSEL TO APPEAR BEFORE THE LEARNED FIRST APPELLATE AUTHORITY ON 23.04.2020 AT 10:00 AM. THERE IS NO NEED TO ISSUE NOTICE TO THE ASSESSE E FOR 23.04.2020 BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 12/02/2020. SD/- [H.S. S IDHU] JUDICIAL MEMBER DATE: 12/02/2020 SH COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES