Resident Welfare & Cultural Society, New Delhi V. JCIT, Noida

ITA 2853/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9855 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N MEENA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Set aside
• Section: 271(1)(c); 143(3); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AN D SHRI O.P.MEENA, ACCOUNTANT MEMBER ITA NO.2853/DEL./2016, A.Y. 2010-11 RESIDENT WELFARE & CULTURAL SOCIETY VS. JCIT E-1, SECTOR-26, RANGE-1 NOIDA NOIDA PAN : AAAAR8417R (APPELLANT) (RESPONDENT ) ASSESSEE BY : REVENUE BY : SHRI S.N.MEENA, SR. DR DATE OF HEARING : 13.11.2019 DATE OF ORDER : 03.01.2020 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, RESIDENT WELFARE AND CULTURAL SOCIE TY, NOIDA (HEREINAFTER REFERRED TO AS 'THE ASSESSEE) BY FILI NG THE AFORESAID APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDER D ATED 29/02/2016 PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEALS)-1 , NOIDA CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT LEV IED BY THE AO ON THE GROUNDS INTER ALIA THAT : 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND O N FACTS IN ITA NO. 2853/D EL./2016 2 CONFIRMING IMPOSING OF PENALTY BY THE AO, RS. 1,38, 090/- ON THE GROUND OF FURNISHING INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF RS. 6,17,930/- 2. THE ORDER OF THE AO AS UPHELD BY THE LEARNED CIT -A BE DECLARED AS NULL AND VOID AB-INITIO. 3. THE APPELLANT CRAVES LEAVE AND SANCTION OF THE H ONBLE ITAT TO FILE ADDITIONAL EVIDENCE, IF SO REQUIRED FOR PRO PER PROSECUTION OF THE CASE, BASED ON FACTS AND CIRCUMSTANCES, WHIC H HAS NOT BEEN OR COULD NOT BE EDUCED OR FILED BEFORE LOWER A UTHORITIES EITHER BECAUSE PROPER AND SUFFICIENT OPPORTUNITY WA S NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEE D WAS NOT APPRECIATED. 4. THE APPELLANT CRAVES LEAVE TO AND PERMISSION OF THE HONBLE ITAT TO ADD TO OR ALTER ANY OF THE GROUNDS OF APPEA L AT ANY TIME UPTO THE FINAL DECISION OF THE APPEAL. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ON THE BASIS OF ASSESSMEN T FRAMED U/S 143(3) OF THE ACT AT TOTAL INCOME OF RS. 6,17,932/- BY MAKING ADDITION OF RS. 2,13,082/- AND 4,04,850/- ON ACCOUN T OF INTEREST AND ON ACCOUNT OF THIRD PARTY RECEIPTS RESPECTIVELY NOT COVERED BY PRINCIPLE OF MUTUALITY RESPECTIVELY BY DENYING THE BENEFIT OF SECTION 11 OF THE ACT, INITIATED THE PENALTY PROCEE DINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PART ICULARS OF INCOME. DECLINING THE CONTENTIONS RAISED BY THE TAX PAYER PROCEEDED TO LEVY PENALTY OF RS. 1,38,090/- @ 150% OF THE TAX SOUGHT TO BE EVADED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 4. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY FILING THE APPEAL WHO HAS CONFIRMED THE PENALTY BY DISMISSING THE APPEAL. ITA NO. 2853/D EL./2016 3 FEELING AGGRIEVED THE ASSESSEE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. AT THE VERY OUTSET LD. AR FOR THE ASSESSEE BROUG HT TO THE NOTICE OF THE BENCH THAT THIS APPEAL HAS BEEN DECID ED BY LD. CIT(A) AT THE BACK OF THE ASSESSEE WITHOUT ISSUING ANY NOTICE AND THAT ASSESSEE INTENDED TO BROUGHT ON RECORD ADDITIO NAL EVIDENCES BUT THERE WAS NO OCCASION FOR HIM TO LEAD SUCH ADDI TIONAL EVIDENCES AS NO NOTICE HAS BEEN SERVED UPON HIM AND REQUESTED FOR GRANTING. ONE MORE OPPORTUNITY TO PROVE ITS CASE. 7. IN ORDER TO EXAMINE THE CONTENTIONS RAISED BY LD . AR FOR THE ASSESSEE PARA 2 OF THE IMPUGNED ORDER PASSED BY LD. CIT(A) IS VERY IMPORTANT, WHICH IS EXTRACTED FOR READY PERUSA L AS UNDER :- 2. THE CASE WAS FIXED FOR HEARING FOR 16/02/ 2016 HOWEVER, ON THE SAID DATE THE APPELLANT THROUGH COUNSEL SUBM ITTED THAT DUE TO UNAVOIDABLE CIRCUMSTANCES THE APPELLANT WAS NOT ABLE TO ATTEND TO THE HEARING AND ASKED FOR AN ADJOURNMENT. THE APPELLANT HAS NOT SPECIFIED FOR WHAT COMPELLING CIR CUMSTANCES IT WAS UNABLE TO ATTEND THE HEARING IN THE ABSENCE OF THE SAME IT CANNOT BE ASCERTAINED IF THERE WAS REASONABLE AN D ADEQUATE CAUSE FOR NOT ATTENDING THE HEARING AND FOR ALLOWIN G ITA NO. 2853/D EL./2016 4 ADJOURNMENT AS REQUESTED. THE PRESENT APPEAL WAS FI LED BY THE APPELLANT IN THE MONTH OF MARCH, 2015 AND HAS THERE FORE BEEN PENDING FOR ABOUT A YEAR, THERE HAS BEEN SUFFICIENT TIME FOR PREPARING THE CASE AND SEEKING A LONG ADJOURNMENT I S NEITHER NECESSARY NOR APPROPRIATE. THE DISPOSAL OF APPEALS ARE GOVERNED BY THE STATUTORY INSTRUCTIONS OF THE CBDT AND IT IS THE CONSISTENT ENDEAVOR OF THE CBDT TO GET THE PENDING APPEALS DISPOSED AS FAST AS POSSIBLE AND THE INDIVIDUAL CSI T (APPEALS) ARE ASSIGNED SPECIFIC TARGETS FOR DISPOSAL OF PENDI NG APPEALS. IN VIEW OF THESE CONTROLLING FACTS AND CIRCUMSTANCES I AM NOT INCLINED TO ACCEPT THE REQUEST FOR ADJOURNMENT ON T HE GROUND OF OCCUPATION OF COUNSEL IN CLOSING. AS SUFFICIENT OPP ORTUNITY HAS ALREADY BEEN ALLOWED TO THE APPELLANT AND APPELLANT HAS NOT CONSIDERED IT NECESSARY TO ENTER APPEARANCE AND DEF END THE CASE THE PENDING APPEAL IS DECIDED ON THE BASIS OF THE PAPER BOOK FILED BY THE APPELLANT AND THE IMPUGNED ORDER OF PENALTY PASSED BY THE LD. A.O. 8. BARE PERUSAL OF PARA 2 OF THE IMPUGNED ORDER PAS SED BY LD. CIT(A) GOES TO CLINCH THE CONTROVERSY AT HAND IN FA VOUR OF THE ASSESSEE BECAUSE LD. CIT(A) HAS NEVER GIVEN NOTICE TO THE ASSESSEE BUT STRAIGHTAWAY RUSHED TO FIX THE CASE FOR HEARING ON 16.02.2016 AND HAS APPARENTLY INCORPORATED THE WRONG FACTS IN PARA 2 OF THE IMPUGNED ORDER THAT ON 16.02.2016 ASSESSEE THROUGH COUNSEL SUBMITTED THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, TH E ASSESSEE WAS NOT ABLE TO ATTEND THE HEARING AND ASKED FOR AN ADJ OURNMENT. NO NAME OF THE COUNSEL OF THE ASSESSEE HAS BEEN GIVEN. MOREOVER IT IS NOT NECESSARY FOR THE ASSESSEE TO PUT IN PERSONAL A PPEARANCE DURING APPELLATE PROCEEDINGS BEFORE LD. CIT(A) BECAUSE WHE N HIS COUNSEL WHOSE NAME HAS OTHERWISE NOT COME ON RECORD, HAS AP PEARED BEFORE LD. CIT(A) THEN IT IS DIFFICULT TO BELIEVE A S TO WHY THE OPPORTUNITY WAS NOT GIVEN TO THE COUNSEL FOR ASSESS EE TO PUT FORTH ITA NO. 2853/D EL./2016 5 ITS CASE. 9. FURTHER FACTS INCORPORATED IN PARA 2 OF THE IMPU GNED ORDER GO TO PROVE THAT THE LD. CIT(A) WITHOUT PROVIDING A DEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE HARPED UPON CBDT INSTRUCTIONS THAT ; SPECIFIC TARGET FOR DISPOSAL O F PENDING APPEAL IS TO BE MET WITH, HENCE, HE DECLINED THE REQUEST OF A DJOURNMENT ON THE GROUND OF PREOCCUPATION OF COUNSEL IN CLOSING. TWO SELF- CONTRADICTORY FACTS HAVE BEEN INCORPORATED IN PARA 2 BY LD. CIT(A) ONE : THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, THE AS SESSEE WAS NOT ABLE TO ATTEND HEARING AND ASKED FOR ADJOURNMENT, T WO : THAT ADJOURNMENT DECLINED ON THE GROUND PREOCCUPATION O F COUNSEL IN CLOSING GO TO PROVE THAT THE APPEAL HAS BEEN DECID ED WITHOUT ISSUING THE NOTICE AND WITHOUT CALLING FOR THE PRES ENCE OF ASSESSEE TO PUT FORTH HIS CASE, WHICH IS VIOLATION OF PRINCI PLE OF RULE OF NATURAL JUSTICE, BECAUSE NOBODY CAN BE CONDEMNED U NHEARD. 10. IN VIEW OF WHAT HAS BEEN DISCUSSED OF THIS CAS E AND WITHOUT GOING INTO MERITS, WE ARE OF THE CONSIDERED VIEW TH AT THE ORDER PASSED BY THE LD. CIT(A) AT THE BACK OF ASSESSEE EV EN WITHOUT ISSUING ANY NOTICE TO IT IS NOT SUSTAINABLE IN THE EYES OF LAW, HENCE, ORDERED TO BE SET ASIDE TO LD. CIT(A) TO DECIDE AFR ESH BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . CONSEQUENTLY, ITA NO. 2853/D EL./2016 6 APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD JANUARY, 2020. SD/- SD/- (O.P.MEENA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER D ATED : 03 /01/ 2020 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-1, NOIDA. 5. CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI DATE OF DICTATION 06.12.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09.12.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER ITA NO. 2853/D EL./2016 7