Shri Kapil Dev, Sonepat V. ITO, Sonepat

ITA 2739/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7079 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GROUNDS TO LEARNED A O
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-II, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.2739/DEL/2016 ASSESSMENT YEAR : 2010-11 KAPIL DEV, S/O SHRI BALJEET SINGH, H.NO.344, WARD-19, SONEPAT. VS. ITO, WARD 2, SONEPAT. PAN : ANGPD9768 H (APPELLANT) (RESPONDENT) O R D E R PER DIVA SINGH, J.M. : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 23.02.2016 OF THE CIT(A), FARIDABAD PER TAINING TO 2010-11 ASSESSMENT YEAR ON VARIOUS ISSUES INCLUDING LACK OF OPPORTUNITY AS ADDRESSED IN GROUND NO.3 WHICH READ AS UNDER :- 3. A.O. HAS WRONGLY MADE ADDITION IN THE INCOME OF ASSESSEE WITHOUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD. THERE IS NOT ANY VALID SERVICES OF NOTICES DURING THE COURSE OF ASSESSMENT. NO ANY VALID SERVICES OF ORDER/NOTICES MADE TO ASSESSEE ANY TIME. ITS FURTHER STATED THAT COUNSEL OF ASSESSEE NEVER FULFILL HIS D UTY. HE ALWAYS SAID THAT HE IS PROPERLY LOOKING FOR THE ASSESSMENT PROCEEDINGS. HE NEVER PUTS PROP ER FACTS & GROUNDS TO THE LEARNED A.O. AND CIT (APPEALS). 2. THE ASSESSEE APPEARING IN PERSON SUBMITTED THAT THE ADDITION IN THE QUANTUM PROCEEDINGS WERE MADE BY THE ASSESSING OFFICER IN A N ORDER PASSED U/S 144 OF THE INCOME-TAX ACT, 1961. IN THE APPEAL AGAINST THE PE NALTY ORDER IT WAS SUBMITTED THAT THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS BEFORE THE C IT(A), WHO HAS MENTIONED THIS FACT IN PARA 3 OF THE IMPUGNED ORDER. THE SUBMISSIONS O F THE ASSESSEE IT WAS STATED HAVE NOT BEEN ADDRESSED. THE CIT(A) IT WAS SUBMITTED ONLY R EPEATS THE REASONS OF THE ASSESSING OFFICER JUSTIFYING THE LEVY OF PENALTY. ON QUERY T HE ASSESSEE WAS UNABLE TO STATE ABOUT THE OUTCOME OF THE QUANTUM PROCEEDINGS BEFORE THE C IT(A). APPELLANT BY SHRI KAPIL DEV, (ASSESSEE IN PERSON) RESPONDENT BY SHRI F.R. MEENA, SR.DR DATE OF HEARING 09-11-2016 DATE OF PRONOUNCEMENT 0500500500 05-01-2017 2 ITA NO.2739/DEL/2016 3. THE LD. SR.DR CONSIDERING THE APPELLATE ORDER IN THE PENALTY PROCEEDINGS WHEREIN THE ASSESSEE WAS FOUND TO HAVE BEEN REPRESE NTED BY SHRI N.C. GARG, CA COULD NOT DISPUTE THAT WRITTEN SUBMISSIONS HAD BEEN FILED BY THE ASSESSEE AS THIS FACT IS RECORDED IN THE IMPUGNED ORDER ITSELF. HOWEVER, HE WAS UNABLE TO SHOW WHERE THE SUBMISSIONS OF THE ASSESSEE ARE RECORDED AND DISCUS SED AND ON WHAT GROUNDS WERE FOUND TO BE NOT ACCEPTABLE. 4. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. A PERUSAL OF THE RECORD SHOWS THAT IN THE HDFC BANK AND IDBI BAN K, SONEPAT THE ASSESSEE WHO IS DESCRIBED AS AN AGRICULTURIST IN THE ASSESSMENT ORD ER WAS FOUND TO HAVE DEPOSITED RS.16,68,400/-. ADDITION OF THE SAID AMOUNT WAS MA DE IN THE HANDS OF THE ASSESSEE BY THE ASSESSING OFFICER BY AN ORDER PASSED U/S 144/14 7 DATED 30.10.2013. PENALTY U/S 271(1)(C) WAS IMPOSED ON THE ASSESSEE IN THE ABSENC E OF ANY EXPLANATION OFFERED IN THE PENALTY PROCEEDINGS. THE ASSESSEE AS PER GROUND NO .3 RAISED BEFORE THE CIT(A) IS FOUND TO HAVE STATED THAT THE PENALTY ORDER MAY BE DECIDE D AFTER THE QUANTUM APPEAL. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THOUGH THE LD. COMMISSIONER RECORDS IN PARA 3 THAT IN RESPONSE TO THE NOTICE U/S 250 OF THE INCOME TAX ACT, 1961 SHRI N. C. GARG, CA, THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT ATTENDED AND FILED WRITTEN SUBMISSION IN SUPPORT OF THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT AND TH E SAME ARE PLACED ON RECORD . HOWEVER, IN PARA 8 HE UPHELD THE PENALTY ORDER AND CONTRADICTS HIS EARLIER FINDING AND RECORDS THAT DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS NOT MADE ANY WRITTEN SUBMISSIONS , THOUGH THE CASE OF THE APPELLANT WAS DISCUSSED WI TH THE LD. AR, SH. N.C. GARG, CA ON 09.02.2016 . THUS NOT ONLY ON THE GROUNDS OF THE OBVIOUS CONTRADICTION IN THE APPRECIATION OF BASIC FACTS I. E. THE FILING OF WRITTEN SUBMISSIONS BY THE ASSESSEE BUT EVEN OTHERWISE THE CORRECTNESS OF THE CONCLUSION DRAWN WHICH IS UNDER CHALLENGE CANNOT BE ADJUDICATED UPON AS NEITHER THE LD. CIT(A) HAS CARED TO DISCUSS THE CONTENTS OF THE WRITTEN SUBMISSIONS IN HIS ORDER NO R HAS HE CARED TO ADDRESS WHY THEY CANNOT BE ACCEPTED. ACCORDINGLY, IN THE ABSENCE OF ANY RELEVANT DISCUSSION WHATSOEVER ON THE ISSUES BEFORE THE CIT(A) IN THE IMPUGNED ORD ER THE CORRECTNESS OF THE CONCLUSION IS OPEN TO THE CHALLENGE OF BEING PERVERSE AS THE O RDER IS A NON-SPEAKING ORDER. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER IS SET-ASIDE AND T HE ISSUES ARE RESTORED BACK TO THE FILE 3 ITA NO.2739/DEL/2016 OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING O RDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 TH JANUARY, 2017. SD/- (A. N. MISHRA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *SUJEET/AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTR AR, ITAT NEW DELHI