Sh. Manish Baxi, Gurgaon V. ACIT, Gurgaon

ITA 2735/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86955 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 23-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM K AUNJNA
• Assessee Lawyers: AMIT MAHESHWARI
• Keywords: Opportunity of being heard

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI GEORGE GEORGE K. , JUDICIAL MEMBER AND SHRI B.C. MEENA , ACCOUNTANT MEMBER ITA NO. 2735 /DEL/201 3 ASSESSMENT YEAR 200 7 - 08 SH. MANISH BAXI VS. CIT(A) - 2, D14/43, GROUND FLOOR, NEW CGO COMPLEX, NH IV, DLF , EXCLUSIVE FLOORS, FARIDABAD. DLF PHASE - V, GURGAON, HARYANA. (PAN AERPB 8961 N ) ( APPELLANT) (RESPONDENT) APPELLANT BY : S H RI AMIT MAHESHWARI, CA. RESPONDENT BY: SH RI P. DAM K AUNJNA , SR. D.R. ORDER PER SHRI GEORGE GEORGE K , J M : 1. TH IS APPEAL , AT THE INSTANCE OF THE ASSESSEE , IS DIRECTED AGAINST THE CIT(A) S ORDER DATED 19 .0 2 .2013 . THE RELEVANT ASSESSMENT YEAR IS 200 7 - 08 . 2. THE SOLITARY ISSUE THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE CIT(A) I S JUSTIFIED IN CONFIRMING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE I.T. ACT, AMOUNTING TO RS.96,765/ - . IT A NO. 2735 /DEL /201 3 2 3. BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS. THE ASSESSEE IS A N INDIVIDUAL . FOR THE RELEVANT ASSESSMENT YEAR , RETURN OF INCOME WAS FILED ON 30.07.2007 , DECLARING AN INCOME OF RS.12,81,160/ - . THE A SSESSMENT WAS TAKEN UP FOR SCRUTINY BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AND SCRUTINY ASSESSMENT WAS COMPLETED ON 18.12.2009 , FIXING THE TOTAL INCOME OF RS. 15,68,640/ - . THE AO IS ALSO INITIATED THE PENALTY PROCEEDING U/S 271(1)(C) OF THE ACT AND PENALTY AMOUNTING TO RS.96,765/ - WAS IMPOSED BY ORDER DATED 24.06.2010. 4. AGAINST THE PENALTY ORDER, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A) DISMISSE D THE APPEAL OF THE ASSESSEE EX - PARTE. A CCORDING TO CIT(A) , ASSESSEE HAD FILED THE APPEAL BELATEDLY AND THERE WAS NO PETITION TO CONDON E THE DELAY. 5. THE ASSESSEE BEING AGGRIEVED BY ORDER OF CIT(A) IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO HEARING NOTICES WERE SERVICED ON THE ASSESSEE, WHICH HAD RESULTED IN AN EX - PARTE ORDER BY THE CIT(A). IT WAS FURTHER SUBMITTED THAT NO NOTICE WAS SERVED ON THE ASSESSEE BY THE ASSESSING OFFICER BEFORE IMPOSING THE PENALTY U/S 271(1)(C) O F THE ACT . ON MERITS, IT WAS SUBMITTED THAT IMPOSITION OF PENALTY IS UNWARRANTED FOR THE FOLLOWING REASON: - 1. THE ASSESSEE HAS MADE A CAPITAL GAIN ON SALE OF ESOP. THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS. 2,26,337/ - TOWARDS THE NET PROCEED DUE T O SALE OF SHARES, WHICH CONTAINS THREE RECEIPTS OF RS.1,35,057/ - , RS.58,808/ - AND RS.32,472/ - ON 14 TH SEPTEMBER 2006. OUT OF THESE THREE RECEIPTS, THE AMOUNT OF RS.58,808/ - IS NOT IT A NO. 2735 /DEL /201 3 3 RELATED TO ESOP. THIS IS THE PROCEEDS FROM SALE OF OTHER SHARES WHERE THE AS SESSEE HAS INCURRED A CAPITAL LOSS OF RS.22,265/ - 2. AN ADDITION OF RS.61,123/ - HAVE BEEN MADE TOWARDS INTEREST RECEIVABLE FROM VATIKA LANDBASE (P) LIMITED. THE ASSESSEE HAS BOOKED THE FLAT AND HAD DEPOSITED A SUM OF RS.5,82,120/ - TOWARDS THE BOOKING AMOUN T. NO INTEREST HAS BEEN EARNED ON THAT AMOUNT. 6. THE LD. DR PRESENT WAS DULY HEARD. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, IN THIS CASE, THE CIT(A) HAS PASSED AN EX - PARTE ORDER. THERE IS NOTHING ON RECORD TO SUGGEST HEARING NOTICE S BEFORE THE CIT(A) WERE DULY SERVED ON THE ASSESSEE. THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT CONSIDERING THE ISSUE ON MERITS . IN THE INTEREST OF JUSTICE AND EQUITY, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY NEE D TO BE GRANTED TO THE ASSESSEE TO EXPLAIN THE CASE BEFORE THE CIT(A). HENCE, THE CASE OF THE ASSESSEE IS RESTORED TO THE FILES OF THE F IRST APPELLATE AUTHORITY FOR FRESH CONSIDERATION. I F THERE IS DELAY IN FILING THE APPEAL BEFORE THE CIT(A) T HE SAME SHAL L BE EXPLAINED BY THE ASSESSEE BY FILING THE NECESSARY PETITION TO CONDONE THE DELAY. THE CIT(A) AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE SHALL DECIDE THE MATTER , IN ACCORDANCE WITH LAW. THE ASSESSEE SHALL COOPERATE WITH REVENU E AND SHALL NOT SEEK ADJOURNMENT WITHOUT VALID REASONS. IT IS ORDERED ACCORDINGLY. IT A NO. 2735 /DEL /201 3 4 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. TH E DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 5 TH FEBRUARY , 201 5 . SD/ - SD/ - ( B.C. MEENA ) (GEORGE GEORGE K.) A CCOUNTANT MEMBER J UDICIAL MEMBER DATED: 2 5 TH FEBRUARY , 201 5 . AKS/ - COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST . REGISTRAR, ITAT, NEW DELHI