M/s. Mirth Capital & Finlease Ltd., Ghaziabad V. ITO, New Delhi

ITA 2829/DEL/2014

• Counselvise Citation: 282920114 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 29-10-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC-2: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2829/DEL/2014 A.Y. : 2003-04 MIRTH CAPITAL & FINLEASE LTD., VS. ITO, WARD-6 (4), C/O AKHILESH KUMAR, ADVOCATE, NEW DELHI CHAMBER NO. 206-207, ANSAL SATNAM RDC RAJ NAGAR, GHAZIABAD (PAN : AAACM6948E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AKHILESH KUMAR, ADV. DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING : 29-10--2015 DATE OF ORDER : 29-10-2015 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IX, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. BECAUSE, THE ORDER OF THE LD. LOWER AUTHORITY IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND HENCE IS UNSUSTAINABLE. 2. BECAUSE, LD. CIT(A) ERRED IN SUSTAINING THE PENALT Y ORDER BY RECORDING AN INCORRECT FINDING THAT, ASSESSEE HAS N OT EXPLAINED HOW HE WAS PREVENTED WITH SUFFICIENT CAUSE TO COMPL Y NOTICE, WHILE ASSESSEE DULY EXPLAINED THAT NOTICE UNDER QU ESTION DATED 18.11.2010 FOR 3011.2010 WAS NOT RECEIVED BEFORE THE DAT E, 2 HENCE THE ORDER PASSED IS ILLEGAL AND AGAINST THE M ATERIAL ON RECORD. 3. BECAUSE, LD. CIT(A) FURTHER ERRED IN RECORDING AN INCORRECT FINDING THAT NOTICE SENT ON THE ADDRESS AT FORM 35 ARE NOT COMPLIED WHILE WHENEVER A NOTICE ISSUED ON THE ADD RESS GIVEN IN FORM 35 FOR SENDING NOTICE THE SAME IS DULY CO MPLIED, HENCE ORDER IS ARBITRARY. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE CONTENTION RAISED IN THE GROUNDS OF APPEAL AND STATED THAT THE ORDERS OF T HE REVENUE AUTHORITIES ARE BAD IN LAW AND ARE NOT SUSTAINABLE, HENCE, THE PENALTY IN DISPUTE MAY BE DELETED. 5. ON THE CONTRARY, LD. DR HAS RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW AND REQUESTED TO DISMISS THE APPEAL OF THE ASSESSE E. 6. I HAVE HEARD BOTH THE PARTIES ON THE ISSUE IN DIS PUTE AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE ORDERS PASSED BY THE REVENU E AUTHORITIES. I AM OF THE VIEW THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A). NO DOUBT THAT THE ASSESSEE HAS FILED SO ME WRITTEN SUBMISSION BEFORE THE LD. CIT(A) AND REQUESTED THAT THE CASE MAY BE DEC IDED ACCORDING TO ITS WRITTEN SUBMISSION AND THE LD. CIT(A) HAS DISMISSED THE APPEA L OF THE ASSESSEE BY UPHOLDING THE PENALTY IN DISPUTE. IN MY VIEW, THE A SSESSEE IS NOT ENTITLED FOR ANY LENIENT VIEW FOR CANCELLATION OF PENALTY IN DISPUT E BY THIS BENCH. HOWEVER, IN THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT AS REQUE STED BY THE ASSESSEE, THE ISSUE IN DISPUTE REQUIRES RE-EXAMINATION AT THE LEVEL OF THE AO WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD TO 3 THE ASSESSEE. AS I HAVE ALREADY STATED ABOVE THAT THE ASSESSEE REMAINED NON- COOPERATIVE BEFORE THE REVENUE AUTHORITIES, THEREFO RE, I DIRECT THE ASSESSEE THROUGH HIS COUNSEL SH. AKHILESH KUMAR, ADVOCATE TO APPEAR BEFORE THE AO ON 10.12.2015 TO REPRESENT THE CASE BEFORE THE AO. IT IS MADE CLE AR THAT AO WILL NOT ISSUE ANY NOTICE TO THE ASSESSEE FOR 10.12.2015. SHRI AKHILES H KUMAR, ADVOCATE AGREED TO APPEAR BEFORE THE AO ON 10.12.2015 TO REPRESENT THE CASE OF THE ASSESSEE AND UNDERTAKE TO COOPERATE BEFORE THE AO IN THE PENALTY PROCEEDINGS FOR THE SPEEDY DISPOSAL OF THE MATTER. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/10/2015 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 29/10/2015 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES