Ankur Jain, New Delhi V. DCIT, Central Circle, Noida

ITA 2606/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6210 (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: 2010-2011
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Keywords: Opportunity of being heard; Set aside
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2606/DEL/2019 ASSESSMENT YEAR: 2010-11 ANKUR JAIN, VS. ITO, WARD-57(3), A-5/4, 4 TH FLOOR WEST JYOTI NAGAR, NEW DELHI NEAR BADA SHIV MANDIR, SHAHDARA, NEW DELHI (PAN:AGCPJ6307R) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. SAURAV ROHTAGI, AR REVENUE BY : MS. PARUL SINGH, SR. DR ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE IM PUGNED ORDER DATED 08.03.2019 PASSED BY THE LD. CIT(A)-19, NEW DELHI R ELATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, NO PROPER OPPORTUNITY OF HEARING HAS BEEN ALLOWED BY C-IT (A) AS NOTICE HAS NOT BEEN SENT ON THE EMAIL MENTIONED IN THE FORM 35. 2.THAT UNDER THE FACTS AND CIRCUMSTANCES, INVOKING OF SEC. 147 AND CONSEQUENTIAL PROCEEDINGS U/S. 148 CULMINATING INTO ASSTT. ORDER U/S. 147 / 144 IS WITHOUT JURISDICTION, ILLEGAL AND UNSU STAINABLE IN LAW AS WELL AS ON MERITS. 3. THAT IN THE ABSENCE OF PRIOR APPROVAL AS REQUIR ED U/S. 151, THE WHOLE PROCEEDINGS ARE WITHOUT JURISDICTION. 4. THAT WITHOUT PREJUDICE, THE APPROVAL OF APPROPRI ATE AUTHORITY, IF DO NOT SHOW THE APPLICATION OF MIND WHILE GRANTING APPROVA L, SUCH APPROVAL SHOULD NOT BE TAKEN AS A VALID APPROVAL, SO AS TO A LLOW THE AO TO PROCEED FOR INITIATING FURTHER PROCEEDINGS U/S. 147 AND NOT ICE U/S. 148. 5. THAT THE PROCEEDINGS U/S. 147/ 148 ARE WITHOUT J URISDICTION AND BAD IN LAW. 2 6. THAT THE ASSTT. ORDER IS WITHOUT JURISDICTION AS THE PROCEEDINGS HAS BEEN INITIATED BY THE NON JURISDICTIONAL ASSESSING OFFICER. 7. THAT THE ASSTT. FRAMED IS BAD IN LAW FOR NON S ERVICE OF REASONS RECORDED FOR REOPENING THE ASSTT. 8.THAT THE ASSTT. AND CIT (A) ORDER HAS BEEN FRAMED WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING, THEREFORE, UN-SU STAINABLE IN LAW AS WELL AS ON FACTS. 9.1.1 THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, LD AO GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN ADDING RS. 10, 26,530/- AS UNDISCLOSED RECEIPTS. 9.1.2 THAT WITHOUT PREJUDICE, THE PROFIT ELEMENT EMBEDDED IN THE UNDISCLOSED SALE RECEIPT NEEDS TO BE ADDED TO THE T OTAL INCOME. 9.1.3 THAT LD AO HAS ERRED IN LAW AND FACTS IN N OT CONSIDERING THE DOCUMENTS AND FACTS FILED DURING THE ASSTT. PROCEED INGS. 9.1.4 THAT NO PROPER AND REASONABLE OPPORTUNITY OF HEARING HAS BEEN ALLOWED. 10. THAT THE WHOLE RE-ASSTT. PROCEEDINGS ARE BAD IN LAW FOR NON SERVICE OF NOTICE U/S. 148 WITHIN STATUTORY TIME LIMIT. 11. THAT THE AO BE DIRECTED TO GIVE CREDIT FOR PREP AID TAXES IN FULL AND AS PER LAW. 12. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO INTE REST U/S. 234 A, 234 B & 234C SHOULD HAVE BEEN CHARGED, IN ANY CASE, THE C ALCULATIONS ARE ERRONEOUS AND EXCESSIVE. 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED THE I SSUES IN DISPUTE AGAINST THE ASSESSEE EX PARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARIN G TO THE ASSESSEE AND HE REQUESTED THAT THE ISSUES IN DISPUT E MAY BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAM E AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 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 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. SIDHU] JUDICIAL MEMBER DATE: 12/02/2020 SH 4 COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES