Airwil JKM Infracon Pvt. Ltd., Delhi V. DCIT, Central Circle, Noida

ITA 282/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7136 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 16-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KR GAUTAM
• Assessee Lawyers: DHERENDER
• Keywords: Principle of natural justice; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI , , . . , , BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT & SH. N.K. BILLAIYA, ACCOUNTANT MEMBER . .. . / ITA NOS.282 & 284/DEL/2019 / ASSESSMENT YEARS 2014-15 & 2016-17 AIRWIL JKM INFRACON PVT LTD. 8/20, KALKAJI EXTENSION, DELHI-110019 PAN-AAMCA4974C .......... /APPELLANT VS DCIT, CENTRAL CIRCLE, 2 ND FLOOR, ARTO COMPLEX, SECTOR-33, NOIDA, . / RESPONDENT / APPELLANT BY : SH. DHERENDER, C.A. / RESPONDENT BY : SH. PRADEEP KR. GAUTAM, SR. DR / DATE OF HEARING: 13.01.2020 / DATE OF PRONOUNCEMENT: 31.01.2020 / ORDER PER SUSHMA CHOWLA, VP THESE TWO APPEALS FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF CIT(A)-IV, KANPUR, DATED 15/11/2018, RELATING TO AS SESSMENT YEAR 2014-15 & 2016-17. 2 ITA NOS.282 & 284/DEL/2018 ASSESSMENT YEAR: 2014-15 & 2016-17 2. IN THESE APPEALS, THE ASSESSEE IS AGGRIEVED BY T HE ORDER OF CIT(A) FOR DECIDING THE APPEALS EX-PARTE QUA THE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE ADDITION. 3. THE LEARNED AR FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HAS PASSED THE EX-PARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF HEARING. 4. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND POINTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASS ESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE RECORD. UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IT IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEA L AFTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING T HE APPEAL, CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON PROSECUTION BY RELYING ON THE RATIO/S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & ANOTHER 11 8 ITR 461 (SC) AND LATE TUKOJI RAO HOLKER VS. CWT 223 ITR 480 (MP). IN THESE FACTS AND CIRCUMSTANCES, WHERE THE CIT(A) HAD DISMISSED THE A PPEALS BY APPLYING THE ABOVE SAID RATIOS, THE ORDER OF THE LEARNED CIT(A) SUFFERS FROM INFIRMITY. THE CIT(A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO GIVE REASONS FOR COMING TO THE CONCLUSION AND IN THE ABSENCE OF THE SAME, THE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THE PRESENT APPEALS, WE FIND THAT THE 3 ITA NOS.282 & 284/DEL/2018 ASSESSMENT YEAR: 2014-15 & 2016-17 CIT(A) HAS DISMISSED THE APPEAL EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEALS BY PASSING REASONED ASSESSMENT O RDER. 6. THE LD. DR FOR THE REVENUE IN THIS CASE POINTED THA T THE CIT(A) HAS DECIDED THE ISSUE ON MERITS AND HENCE, THE PROPOSIT ION LAID DOWN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PR. CIT V S ASHOKJI CHANDUJI THAKOR IN R/TAX APPEAL NO.710 OF 2018 & ORS., ORDER DATED 27/06/2018 IS APPLICABLE. 7. THE HONBLE GUJARAT HIGH COURT IN THE AFORESAID CASE NOTED THAT THE CIT(A) HAD PASSED WELL REASONED ORDER AND HENCE INT ERFERENCE WAS CALLED FOR IN SUCH ORDER OF THE CIT(A). 8. APPLYING THE SAID RATIO TO THE FACTS OF THE PRES ENT APPEALS, WE FIND THAT IN THE PRESENT CASES, THE CIT(A) HAS ONLY UPHE LD THE ORDER OF THE ASSESSING OFFICER ON MERITS BY REFERRING TO THE CON TENTIONS OF THE ASSESSING OFFICER BUT HAS NOT DECIDED THE ISSUE BY WAY OF ANY REASONING. THE HONBLE APEX COURT IN NUMBER OF DECISIONS HAVE LAID DOWN TH AT THE PRINCIPLE OF NATURAL JUSTICE WOULD BE VIOLATED IN CASE REASONABL E OPPORTUNITY OF HEARING IS NOT ALLOWED TO THE ASSESSEE AND ALSO WHERE THE C IT(A) HAS FAILED TO DISCUSS THE ISSUE ON MERITS, THERE IS NO MERIT IN T HE EX-PARTE ORDER PASSED BY CIT(A) QUA THE ASSESSEE. 9. ACCORDINGLY, WE SET ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH DIRECTION TO THE CIT(A) TO DECIDE THE ISSUE ON MERI TS BY A REASONED ORDER, 4 ITA NOS.282 & 284/DEL/2018 ASSESSMENT YEAR: 2014-15 & 2016-17 AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. FURTHER THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT(A) AND PARTICIPATE IN THE APPELLATE PROCEEDINGS. THE APPEAL IS THUS DECID ED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERITS OF THE ADDITION . 10. HENCE THESE APPEALS ARE RESTORED BACK TO THE FI LE OF CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY W ITH NOTICES ISSUED BY THE CIT(A). THE PRELIMINARY ISSUE RAISED IN THIS APPEAL IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEAL IS BEING DECIDED ON T HE PRELIMINARY ISSUE, WE ARE NOT ADDRESSING THE ISSUE RAISED ON MERIT. 11. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF JANUARY, 2020. SD/- SD/- (N. K. BILLAIYA) (SUSHMA CHOWLA) /ACCOUNTANT MEMBER /VICE PRESIDENT / DATED : 31 ST JANUARY, 2020 . S. SHEKHAR, SR. P.S. COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. / THE CIT(A) 4. / DR, ITAT, DELHI 5. GUARD FILE. / BY ORDER , /ASSISTANT REGISTRAR, / ITAT, DELHI