Swati Mahajan, Noida V. ITO Ward 3(4), Noida

ITA 2728/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3503 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GAURAV BANSAL CA MS NEHA GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 250; 147; 148; 144

Judgement Text

SWATI MAHAJAN VS. ITO/ I.T.A.NO.2728/DEL/2019/A.Y.2 010-11 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER . . /. I.T.A NO.2728/DEL/2019 / ASSESSMENT YEAR:2010-11 SWATI MAHAJAN 2354, 5 TH FLOOR, OVERSEAS APARTMENT, SECTOR-50, NOIDA, UTTAR PRADESH. VS. ITO WARD 3(4) NOIDA. APPELLANT / RESPONDENT PAN NO. AJXPM5544R /ASSESSEE BY SHRI GAURAV BANSAL, CA MS. NEHA GUPTA, ADVOCATE /REVENUE BY SHRI PRADEEP SINGH GAUTAM, SR. DR /O R D E R 1. THIS APPEAL FILED BY THE ASSESSEE AGAINST THE IM PUGNED ORDER DATED 28.09.2018 PASSED BY THE LD. CIT(APPEALS)-1, NOIDA IN RELATION TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN PASSIN G AN EX- PARTE ORDER U/S 250 OF THE ACT AGAINST THE PROVISIO NS OF NATURAL JUSTICE AND WITHOUT GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THUS, THE ORDER OF THE CIT(A) MUST BE ANNULLED. 2. THE LD. CIT(A) ERRED IN LAW AND ON FACT IN NOT ADMI TTING THE APPEAL OF THE ASSESSEE BY APPLYING THE PROVISIONS O F SECTION 294(4)(B) OF THE IT ACT, 1961, WHILE THE ASSESSEE H AD DULY SWATI MAHAJAN VS. ITO/ I.T.A.NO.2728/DEL/2019/A.Y.2 010-11 PAGE 2 OF 5 SUBMITTED THE DETAILS AND EVIDENCE IN FORM 35 IN RE SPECT OF TAX PAID BY THE ASSESSEE AS PER RETURNED INCOME. 3. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT CON SIDERING THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN APPEAL B EFORE HIM AGAINST THE ORDER OF THE AO. 4. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT APP RECIATING THAT NO NOTICE U/S 148 WAS EVER BEEN SERVED ON THE ASSESSEE AND THE AO HAD NO JURISDICTION OVER THE ASSESSEE, T HUS, THE ORDER PASSED BY THE AO IS LIABLE TO BE QUASHED. 5. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT APP RECIATING THAT THE AO HAD WRONGLY STATED THAT THE ASSESSEE DI D NOT QUOTE HER PAN WHILE BUYING THE PROPERTY AND THUS, T HE SELECTION OF THE CASE FOR SCRUTINY U/S 148 ON THE B ASIS OF WRONG INFORMATION IS INVALID. 6. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT APP RECIATING THAT THE AO TOTALLY IGNORED THE MATERIAL AVAILABLE ON RECORD, WHILE MAKING ADDITION, AS THE PROPERTY WAS IN JOINT NAME AND ADDITION WAS MADE IN SINGLE NAME. 7. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT ADM ITTING THE APPEAL OF THE ASSESSEE AND CONFIRMING THE ADDITION MADE BY THE AO OF RS. 43,31,407/- U/S 69 OF THE ACT AS UNEX PLAINED AND INVESTMENT IN THE PROPERTY WITHOUT GIVING THE ASSES SEE AN OPPORTUNITY OF BEING HEARD AND APPRECIATING THAT TH E WHOLE ASSESSMENT PROCEEDINGS WERE INVALID. THUS, THE ADD ITION MUST BE DELETED. 8. THAT THE CIT(A) WAS NOT CORRECT IN LAW IN SERVING T HE ORDER BY SENDING IT THROUGH E-MAIL ON 31.01.2019 WHICH IMPLI ES THAT THE ORDER HAS NOT BEEN PASSED ON THE DATE SPECIFIED ON THE ORDER. 9. THE APPELLANT CRAVES LEAVE TO AND PERMISSION OF THE HONBLE ITAT TO ADD TO OR ALTER ANY OF THE GROUNDS OF APPEA L AT ANY TIME UP TO THE FINAL DECISION OF THE APPEAL. SWATI MAHAJAN VS. ITO/ I.T.A.NO.2728/DEL/2019/A.Y.2 010-11 PAGE 3 OF 5 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY. HE REQUESTED THAT THE ISSUES INVOLVED IN THE PRESENT APPEAL MAY BE SET AS IDE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AS PER LAW, AFTER GIVING OPPORTUNITY TO THE ASSESSEE. HE HAS ALSO FILED A W RITTEN SUBMISSION BEFORE THE BENCH TODAY I.E. ON 26.11.2019 IN WHICH HE IS ATTACHED FORM NO. 35 FILED BEFORE THE LD. FIRST APPELLATE AUTHORI TY ALONG WITH THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A ) AND ACKNOWLEDGEMENT OF ITR FOR THE YEAR IN DISPUTE IN W HICH HE SHOWS THAT ASSESSEE HAS MADE THE PAYMENT OF ADMITTED TAX AND A SSESSEE IS HAVING DUES OF REFUND AMOUNTING TO RS. 57,005/-. MAINLY H E REQUESTED THAT HE WILL ESTABLISH THE CASE OF ASSESSEE BEFORE THE LD. FIRST APPELLATE AUTHORITY ON THE ISSUES INVOLVED IN THE PRESENT APP EAL AND REQUESTED FOR SETTING ASIDE THE ISSUE TO THE LD. FIRST APPELLATE AUTHORITY. 3. LD. DR HAS NOT RAISED ANY SERIOUS OBJECTION ON T HE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. 4. I HAVE HEARD THE BOTH PARTIES AND PERUSED THE OR DERS PASSED BY THE REVENUE AUTHORITY ESPECIALLY THE IMPUGNED ORDER AND FIND THAT THE AO HAS COMPLETED THE ASSESSMENT U/S 144 READ WITH SECT ION 147 OF THE ACT AND THE LD. FIRST APPELLATE AUTHORITY HAD DECIDED T HE ISSUE IN DISPUTE AGAINST THE ASSESSEE EX PARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO SWATI MAHAJAN VS. ITO/ I.T.A.NO.2728/DEL/2019/A.Y.2 010-11 PAGE 4 OF 5 THE ASSESSEE. I ALSO FIND THAT IN VIEW OF THE WRIT TEN SUBMISSION FILED BY THE ASSESSEE IN WHICH THE ASSESSEE HAS ATTACHED ACK NOWLEDGMENT OF ITR FOR THE YEAR 2010-11 IN WHICH THE ASSESSEE HAS SHOW N THE REFUND OF RS. 57,005/- WHICH NEEDS EXAMINATION BY THE LD. FIRST A PPELLATE AUTHORITY AS PER LAW. THEREFORE, IN THE INTEREST OF JUSTICE AND KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE EX PARTE ORDER OF THE LD. CIT(A), I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEAR BEFORE THE LD. FIRST APPELLATE AUTHORITY ON 26.03.2 020 AND SUBSTANTIATE THE ISSUES INVOLVED IN THE APPEALS WITH DOCUMENTARY EVIDENCE. I AM DIRECTING THE LD. CIT(A) TO PROVIDE SUFFICIENT OPPO RTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HER CLAIM AND DECIDE THE ISSUES IN APPEAL AS PER LAW. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 6. IT IS MADE CLEAR THAT NO NOTICE SHALL BE ISSUED TO THE ASSESSEE FOR 26.03.2010 TO APPEAR BEFORE THE LD. CIT(A) BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. THE ORDER PRONOUNCED IN THE OPEN COURT ON 02.12.201 9 SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 2 ND DECEMBER, 2019 *KAVITA ARORA, SR. PS SWATI MAHAJAN VS. ITO/ I.T.A.NO.2728/DEL/2019/A.Y.2 010-11 PAGE 5 OF 5 COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI