Davinder Kumar, New Delhi V. ITO, Ward- 32(2), New Delhi

ITA 2764/DEL/2018

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5783 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C P SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 234B; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T .A. NO. 2 764 /DEL/201 8 ASSESSMENT YEAR: 20 11 - 1 2 DAVINDER KUMAR, C/O M/S. LALIT VANJANI & CO., 16, NEHRU APARTMENTS, OUTER RING ROAD, KALKAJI, NEW DELHI. V. ITO, WARD-32(2), NEW DELHI. TAN/PAN: ALPPK 9019B (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI SATISH KUMAR, CA RESPONDENT BY: SHRI C.P. SINGH , SR.D.R. DATE OF HEARING: 1 3 09 201 8 DATE OF PRONOUNCEMENT: 10 12 201 8 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 29.03.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-II, NEW DELHI FOR ASSESSMENT YEAR 2011-12. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN AGGREGATE ADDITION OF RS.9,50,162/- ON ACCOUNT OF DISALLOWANCE U/S 40A(IA) OF THE ACT FOR RS 9,07,410 AND RS 42,752/- AS UNEXPLAINED CURRENT LIABILITY WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN AGGREGATE ADDITION OF RS.9,50,162/- IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES I.T.A. NO.2764/DEL/2018 2 OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234A AND 234B OF INCOME TAX ACT, 1961. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT (A) HAS PASSED AN EX-PARTE ORDER AND NONE OF THE NOTICES SENT FROM THE OFFICE OF THE LD. CIT (A) WAS SERVED UPON THE ASSESSEE. 3. BEFORE US, THE ASSESSEE IN HIS WRITTEN SUBMISSION HAS STATED AS UNDER: BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT WAS ENGAGED IN THE SMALL BUSINESS OF VEHICLE CONTRACT RENTALS AND USED HIS OWN AS WELL AS OTHER HIRED VEHICLES FOR THE PURPOSE OF HIS RENTAL BUSINESS. THE APPELLANT HAD FILED AN APPEAL BEFORE LD. CIT(A) AGAINST THE ORDER OF ASSESSMENT WHEREIN DISALLOWANCE U/S 40A(IA) WAS MADE AMOUNTING TO RS 9,07,410/- AND RS 42,752/- ON ACCOUNT OF NON CONFIRMATION OF CREDITOR. AS IS EVIDENT FROM THE ORDER OF THE LD CIT(A) AT PARA 2 NONE OF THE NOTICES WERE SERVED ON THE APPELLANT. THE APPELLANT WAS ENTIRELY DEPENDENT ON HIS AR FOR HIS INCOME TAX MATTERS/ LITIGATION. THE APPELLANT IS NOT EDUCATED AND IS NOT AWARE ABOUT THE NITTY-GRITTY OF INCOME TAX PROCEEDINGS AND HE WAS UNDER THE BONA FIDE BELIEF THAT HIS CASE WAS PROPERLY LOOKED-AFTER BY HIS AR. FOR THE REASONS BEST KNOWN TO THE AR HE NEVER APPEARED BEFORE THE LD. CIT(A). THE APPELLANT WAS NOT EVEN AWARE OF THIS FACT AND THAT WAS THE MAIN REASON FOR NOT HAVING PROPER REPRESENTATION OF APPEAL BEFORE LD. CIT(A). AN AFFIDAVIT OF APPELLANT IS ENCLOSED HEREWITH TO SUPPORT THIS CONTENTION. IN VIEW OF ABOVE CIRCUMSTANCES, A HUMBLE PRAYER IS MADE IN THE I.T.A. NO.2764/DEL/2018 3 INTEREST OF JUSTICE AND FAIR PLAY THAT THIS CASE MAY BE KINDLY BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION OF THE ISSUES AFTER GIVING ONE LAST OPPORTUNITY TO THE APPELLANT. 4. IN SUPPORT, THE AFFIDAVIT HAS ALSO BEEN FILED. THUS, HE SUBMITTED THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED A FRESH IN ACCORDANCE WITH LAW. 5. LD. DR ALSO DID NOT OBJECT FOR REMITTING THE ISSUE TO THE FILE OF THE LD. CIT(A). 6. AFTER CONSIDERING THE AFORESAID SUBMISSION AND ON PERUSAL OF THE MATERIAL PLACED ON RECORD, WE FIND THAT IN SIMILAR MATTER OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2012- 13, THIS TRIBUNAL ON AN EX-PARTE ORDER PASSED BY LD. CIT (A) FOR SUBSEQUENT YEAR HAD REMITTED THE ISSUE TO THE FILE OF THE LD. CIT (A) TO BE DECIDED A FRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAID ORDER PASSED IN ITA NO.490/DEL/2017 DATED 19.05.2017, WE REMIT ALL THE ISSUES RAISED BEFORE US TO THE FILE OF THE LD. CIT (A) WITH SIMILAR DIRECTION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH DECEMBER, 2018. SD/- [AMIT SHUKLA] JUDICIAL MEMBER I.T.A. NO.2764/DEL/2018 4 DATED: 10 TH DECEMBER, 2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR DATE 1. DRAFT DICTATED ON (DIRECT ON COMPUTER) .12.2018 2. DRAFT PLACED BEFORE AUTHOR .12.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE COMES BACK TO PS/SR. PS 8. UPLOADED ON 9. FILE SENT TO THE BENCH CLERK 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER.