M/s. Supertech Limited, New Delhi V. ACIT (TDS), Noida

ITA 2728/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2774 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 2728 /DEL/2016 : ASSTT. YEAR : 2011 - 12 ITA NO. 2729/DEL/2016 : ASSTT. YEAR : 2012 - 13 ITA NO. 2730/DEL/2016 : ASSTT. YEAR : 2013 - 14 SUPERTECH LIMITED, 1114, HE MKUNT CHAMBER, 89, NEHRU PLACE, NEW DELHI - 110019 VS ACIT (TDS), NOIDA (APPELLANT) (RESPONDENT) PAN NO. A A BCS0646N ASSESSEE BY : NONE REVENUE BY : SH. KAUSHLENDRA TIWARI , SR. DR DATE OF HEARING : 28 .12 .201 7 DATE OF PRONOUNCE MENT : 28 .12 .201 7 ORDER PER BENCH : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON OR DER DATED 16.03.2016 OF LD. CIT(A) - I, NOIDA. 2 . DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. WE, THEREFORE, PROCEEDED EX - PARTE AND THE APPEALS HAVE BEEN DECIDED AFTER HEARING THE LD. DR. 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THESE APPEALS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - I, NOIDA, U.P. CONFIRMING THE ADDITION OF RS.10.86.14,779/ - MADE BY THE ASSESSING OFFICER ON THE ASSESSEE TREATING ASSESSEE IS DEFAULT FO R NOT DEDUCTING THE TDS ON LEASE RENT ALLEGED TO ITA NO S. 2728 TO 2730 /DE L/201 6 SUPERTECH LTD. 2 BE DEDUCT TDS ON PAYMENT OF LEASE RENT U/S 194 - 1 BEING A LOCAL AUTHORITY IS CONTRARY IN LAW AND FACTS OF THE CASE. 2. THE ORDER OF THE LTD. CIT CONFIRMING THE ADDITION WITHOUT PROVIDING THE REASONABLE OPPOR TUNITY INSPITE OF AN ADJOURN APPLICATION SUBMITTED ON 21.10.2016. 3. ON THE FACTS BROUGHT ON RECORD, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVES TO ADD OR AMEND ANY GROUND OF APPEAL. 4 . VIDE GROUND NO. 2, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF ADDITION BY THE LD. CIT(A) WITHOUT PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD INSPITE OF AN ADJOURNMENT APPLICATION SUBMITTED ON 21.1 0.2016. 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE AO PASSED THE ORDER U/S 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON 28.02.2014 AND HELD THE ASSESSEE TO BE AN ASSESSEE IN DEFAULT FOR NOT DEDUCTING THE TAX AT SOURCE AND FOR NOT PAYING THE TAX DEDUCTED AT SOURCE TO THE CREDIT OF THE CENTRAL GOVERNMENT IN TIME. THE AO RAISED THE TAX LIABILITY OF RS.3,58,83,474/ - . 6 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DECIDED THE APPEAL EX - PARTE AND CONFIRMED THE LIABILITY RAISED BY THE AO. ITA NO S. 2728 TO 2730 /DE L/201 6 SUPERTECH LTD. 3 7 . NOW THE ASSESSEE IS IN APPEAL. THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT DEDUCT TAX ON THE PAYMENT OF LEASE RENT TO THE NOIDA DEVELOPMENT AUTHORITY/GREATER NODIA DEVELOPMENT AUTHORITY AS PER THE PROVISIONS OF SECTION 194 I OF THE ACT. THEREFORE, THE AO WAS JUSTIFIED IN HOLDING THE ASSESSEE AS AN ASSESSEE IN DEFAULT. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATER IAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) PASSED THE EX - PARTE ORDER BY OBSERVING IN PARA 2 OF THE IMPUGNED ORDER WHICH READ AS UNDER: 2. THE CASE WAS APPELLANT WAS FIXED FOR HEARING ON 08/06/2015 BUT THERE WAS NO COMPLIANCE AND NO REQUEST FOR ADJ OURNMENT WAS R ECEIVED EITHER. NOTICE WAS AGAIN SENT AND CASE WAS FIXED FOR HEARING ON 20/08/2015. ON 20/08 /2015 A LETTER FOR ADJOURNMENT WAS RECEIVED WHICH WAS GRANTED AND THE CASE WAS AGAIN FIXED FOR HEARING ON 22/09/2015. AGAIN THERE WAS NO RESPONSE AND REQUEST FOR ADJOURNMENT WAS RECEIVED EITHER. THE CASE WAS AGAIN FIXED FOR 16/12/2015 AND 01/01/2016 BUT AGAIN THERE WAS NO RESPONSE. HOWEVER, ON 21/01/2016 A LETTER WAS RECEIVED FOR FURTHER ADJOURNMENT ON THE PRETEXT THAT T HE COUNSEL IS OUT OF STATION AND THE REQUIRED DETAILS AND DOCUMENTS COULD NOT BE PREPARED. FROM THE ABOVE IT IS CLEAR THAT THE APPELLANT IS NOT INTERESTED TO PROSECUTE ITS CASE. 9. FROM THE ABOVE OBSERVATION OF THE LD. CIT(A), IT IS CLEAR THAT THE ASSESS EE SOUGHT ADJOURNMENT ON THE PRETEXT THAT THE COUNSEL WAS OUT OF STATION , FOR THAT REASON THE REQUIRED DETAILS AND DOCUMENTS COULD NOT BE PREPARED. THE LD. CIT(A) HAD NOT GIVEN ANY REASON FOR NOT ACCEPTING THE ITA NO S. 2728 TO 2730 /DE L/201 6 SUPERTECH LTD. 4 SAID REQUEST. HE HAD ALSO NOT POINTED OUT AS T O WHETHER REQUEST OF THE ASSESSEE FOR ADJOU RNMENT WAS REJECTED OR ACCEPTED, H E SIMPLY STATED THAT THE ASSESSEE WAS NOT INTERESTED TO PROSECUTE ITS CASE. ON THE CONTRARY, THE ASSESSEE SOUGHT TIME FOR PREPARATION AND FURNISHING THE REQUIRED DETAILS/DOCUMENTS . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE , THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE BACK TO THE F ILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN T HE COURT ON 28 /12/2017) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 /12 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITA T ASSISTANT REGISTRAR