Sh. Surender Singh, Gurgaon V. ITO, Gurgaon

ITA 2864/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2691 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 2864/DEL/2016 : ASSTT. YEAR : 2011 - 12 SH. SURENDER SINGH, S/O DIWAN SINGH, H. NO. 70 2, V.P.O. JHARSA, GURGAON VS INCOME TAX OFFICER, WARD - 2(2), GURGAON (APPELLANT) (RESPONDENT) PAN NO. BBBPS6538J ASSESSEE BY : NONE REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 2 7 .07 .201 7 DATE OF PRONOUNCEMENT : 31 . 0 7 .201 7 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 26.11 .2015 OF LD. CIT(A) - 2 , GURGAON . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. T HAT THE ORDER IS VOID, ILLEGAL, ARBITRARY AND AGAINST THE LAW OF NATURAL JUSTICE. 2. N O REASONABLE OPPORTUNITY HAS BEEN PROVIDED BEFORE DECIDING THE CASE. 3. F IRST NOTICE WAS ISSUED ON 06/08/2015 AND SUBSEQUENT NOTICE WAS ISSUED ON VERY SHORT NOTICE & FINAL OPPORTUNITY WAS PROVIDED ON 29/10/ 2015 AS MENTIONED IN THE ORDER. ITA NO. 2864 /DEL /201 6 SURENDER SINGH 2 4. N O NOTICE HAS BEEN SERVED. T HERE IS NO CONFIRMATION OF SERVING THE NOTICE THROUGH SPEED POST, IT IS MENTIONED AMBIGUOUS LY THAT THERE WAS NO RESPONSE. I T IS NOT MENTIONED IN THE ORDER WHETHER NOTICE WAS SERVED OR NOT O R RETURNED UNDELIVERED. 5. T HAT AN AFFIDAVIT IS ALSO BEING FILLED STATING THAT ASSESSEE HAS NOT RECEIVED ANY NOTICE. (IN RESPECT OF NON RECEIPT OF NOTICE) I F AN ASSESSEE FILES AN AFFIDAVIT AND BRINGS TO THE NOTICE TO THE TRIBUNAL THAT HE HAS NOT RECEIV ED OR HE HAS BEEN NOT SERVED, THE TRIBUNAL MAY RESTORE THE MA NNER AS DECIDED IN THE CASE OF MEGHJI K ANJI PATEL VS. K UNDANMAL C HAMANLAL AIR 1968 B OM. 387, THE HON'BLE B OMBAY HIGH COURT HELD THAT WHERE AN AFFIDAVIT IS FILED THE SAME HAS TO BE ACCEPTED. THIS VIEW OF B OMBAY HIGH COURT, IS AFF IRMED BY THE SUPREME COURT IN PUWADA VENKETESWARA RAO VS. CHINDAMANA V ENKATA R AMAN AIR 1976 SC 869, 871. 6. T HAT THE ASSESSEE HAS PAID THE APPELLANT AUTHORITY PRE SCRIBED FEE AS HE WAS INTER ESTED IN PER U S ING HIS CASE. 7 . S INCE NO REASONABLE OPPORTUNITY OF BEING HEARD HAS BEEN PROVIDED TO THE ASSESSEE AS HE DID NOT RECEIV E ANY NOTICE OF HEARING, IT CAN NOT BE SAID THAT THE FACTS OF THE CASE HAVE BEEN DULY EXAMINED. I T HAS BEEN CLEARLY HELD IN T HE CASE OF G UJ ARAT THEMIS B I OSYN LTD. VS JOINT COMMISSIONER OF INCOME T AX ON 20 TH AUGUST, 1999 THAT THE ORDER HAS TO BE PASSED U/S 250(6) AFTER CONSIDERING ALL THE FACTS CLEARLY. ITA NO. 2864 /DEL /201 6 SURENDER SINGH 3 8. T HAT THE ASSESSEE HAS DULY ACCOUNTED FOR THE DEPOSIT OF CASH IN BOOKS OF ACCOUNTS AND IN POSSESSION OF DETAILS OF THE SUNDRY CREDITORS AND UNSECURED LOANS BUT HE HAS NOT BEEN P ROVIDED THE OPPORTUNITY OF SUBMITTING THESE DETAILS. 9. T HAT THE ASSESSEE RESERVES HIS RIGHT TO TAKE ANY OTHER GROUND OF APPEAL AT THE TIME OF HEARING. 3. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. THEREFORE, THE APPEAL IS DECIDED EX - PARTE ON MERIT AFTER HEARING THE LD. SR. DR. 4 . FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY T HE LD. CIT(A). 5 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RE TURN OF INCOME ON 31.03.2012 DECLARING AN INCOME OF RS.3,60,504/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAMED THE ASSESSMENT EX - PARTE U/S 144 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AT AN INCOME OF RS. 66,71,307/ - BY MAKING THE ADDITIONS I.E. ON ACCOUNT OF CASH DEPOSITS IN SAVING BANK ACCOUNT MAINTAINED WITH ORIENTAL BANK OF COMMERCE, CHIRANJIV BHARTI SCHOOL, PALAM VIHAR, GURGAON AMOUNT ING TO RS.43,07,400/ - , UNSECURED LOANS OF ITA NO. 2864 /DEL /201 6 SURENDER SINGH 4 RS.6,50,000/ - AND SUNDRY CREDITORS AMOUNTING TO RS. 13,53,403/ - . 6 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION S BY PASSING THE EX - PARTE ORDER. THE LD. CIT(A) MEN TIONED THAT THE NOTICE S OF HEARING WERE SENT TO THE ASSESSEE THROUGH SPEED POST BUT THERE WAS NO RESPONSE. 7 . NOW THE ASSESSEE IS IN APPEAL. THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT FURNISH ANY EXPLANATION EITHER BEFORE THE AO OR THE LD. CIT(A). THEREFORE, THE ADDITIONS WERE RIGHTLY MADE BY THE AO AND THE LD. CIT(A) WAS JUSTIFIED IN SUSTAINING THE SAME . 8. WE HAVE CONSIDERED THE SUBMISSION OF THE LD. DR AND CAREFULLY GONE THROUGH THE MATERI AL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AO PASSED THE EX - PARTE ORDER BY MENTIONING THAT THE NOTICES ISSUED DEEMED TO BE SERVED UPON THE ASSESSEE. HE HAD ALSO MENTIONED THAT THE ASSESSEE WAS DELIBERATELY NOT ATTENDING THE ASS ESSMENT PROCEEDING. SIMILARLY, THE LD. CIT(A) MENTIONED THAT THE NOTICES WERE ISSUED AND SENT TO THE ASSESSEE BUT THERE WAS NO ITA NO. 2864 /DEL /201 6 SURENDER SINGH 5 RESPONSE. HOWEVER, NEITHER THE AO NOR THE LD. CIT(A) BROUGHT ANY MATERIAL ON RECORD TO SUBSTANTIATE THAT THE NOTICES ISSUED WERE IN FACT SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ( ORDER PRON OUNCED IN THE COURT ON 31 /0 7 /2017 ) SD/ - SD/ - ( KULDIP SINGH ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 31 /07 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT A SSISTANT REGISTRAR