Sh. Firay Singh, New Delhi V. ITO, New Delhi

ITA 291/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81666 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ASHIMA NEB
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI G. D. AGRAWAL, HONBLE VICE-PRESIDENT AND SHRI C. M. GARG, HONBLE JUDICIAL MEMBER I.T.A .NO.-291/DEL/2012 (ASSESSMENT YEAR-2007-08) SHRI FIRAY SINGH VS. ITO, U-141, GROUND FLOOR, WARD 36(3) SHAKAR PUR NEW DELHI. DELHI-110092 PAN: ALEPS9334G (APPELLANT) (RESPONDENT) ASSESSEE BY:-SH. TARUN KUMAR, ADV. & SH. SOMIL AGGARWAL, CA. REVENUE BY:-MRS. ASHIMA NEB, SR. DR ORDER PER C. M. GARG, JM. THIS APPEAL HAS BEEN PREFERRED AGAINST THE ORDER OF CIT (APPEALS) XXVII, NEW DELHI, DATED 27.10.2011 IN APPEAL NO. 25 /10-11 FOR ASSESSMENT YEAR 2007-08. 2. ALTHOUGH THE ASSESSEE HAS TAKEN 9 GROUNDS OF THI S APPEAL BUT AS REQUESTED BY BOTH THE PARTIES, WE TAKE UP GROUND NO . 1 WHICH READ AS UNDER: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE IMPU GNED I.T.A .NO.-291/DEL/2012 (ASSESSMENT YEAR-2007-08) 2 ASSESSMENT ORDER THAT TOO WITHOUT ASSUMING JURISDIC TION AS PER LAW AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 3. APROPOS GROUND NO. 1, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN LAW ON FACTS IN CONFIRM ING THE ASSESSMENT ORDER WHICH WAS PASSED WITHOUT ASSUMING VALID JURISDICTIO N AS PER LAW AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD FOR THE ASSESS EE. 4. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITT ED THAT THE AO HAD NOTICED THAT ATTENDANCE OF SHRI SACHIN AGGARWAL, CA ON BEHALF OF THE ASSESSEE ON 23.11.2009 BUT ON 4.12.2009 THE AO MARK ED ABSENT OF ASSESSEE AS WELL AS REPRESENTATIVE OF THE ASSESSEE AND PASSI NG THE IMPUGNED ORDER WITHOUT PROVIDING DUE OPPORTUNITY OF BEING HEARD FO R THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE ALSO DRAWN OUR ATTENTION TOWARDS IMPUGNED ORDER AND SUBMITTED THAT THE ASSESSEES RE PRESENTATIVE SHRI SACHIN AGGARWAL, CA ATTENDED THE PROCEEDING ON VARIOUS DAT ES BUT ONLY ON ACCOUNT OF FAILURE TO ATTEND THE CASE ON 4.12.2009 THE CASE WAS DECIDED ON MERITS EXPARTE WITHOUT PROVIDING DUE OPPORTUNITY OF BEING HEARD FOR THE ASSESSEE HENCE, THE AO WAS NOT JUSTIFIED IN PASSING EXPARTE ASSESSMENT ORDER. THEREFORE, THE LD. CIT(A) HAS GROSSLY ERRED IN DISM ISSING GROUND NO. 1 AND 2 OF THE ASSESSEE DURING FIRST APPELLATE PROCEEDINGS. I.T.A .NO.-291/DEL/2012 (ASSESSMENT YEAR-2007-08) 3 6. REPLYING TO THE ABOVE, THE LD. DR CONTENDED THAT THE AO PROVIDED 14 OPPORTUNITIES OF HEARING FOR THE ASSESSEE BUT THE A SSESSEES REPRESENTATIVE SHRI SACHIN AGGARWAL, CA KEPT ON ASKING ADJOURNMENT S WITHOUT SUBMITTING REQUIRED EXPLANATION TOWARDS CASH WITHDRAWALS. THE LD. DR ALSO SUBMITTED THAT IN ABOVE FACTS AND CIRCUMSTANCES, THE AO HAD N O OPTION BUT TO COMPLETE ASSESSMENT EXPARTE ON THE BASIS OF MATERIAL PLACED BEFORE THE AO, WHICH CANNOT BE SAID TO BE AN UNREASONABLE ACTION. 7. ON CAREFUL CONSIDERATION OF ABOVE CONTENTIONS & SUBMISSIONS AND VIGILANT PERUSAL OF RELEVANT MATERIAL PLACED ON REC ORD. WE ARE OF THE VIEW THAT THE MAIN ALLEGATION AND CONTENTIONS OF THE DEP ARTMENT DURING ASSESSMENT PROCEEDINGS WAS THAT AS PER THE AIR INFO RMATION ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.13,61,200/- IN HIS B ANK ACCOUNT OPERATED WITH BANK OF BARODA, SAKARPUR BRANCH, AND DESPITE O F REPEATED REQUESTS THE ASSESSEE FAIL TO PROVIDE THE SOURCE OF CASH DEPOSIT ED IN THE BANK ACCOUNT BEFORE THE AO. THE LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ASSESSEE WAS ENGAGED IN PROVIDING SERVICES OF RENOVATION AND CONSTRUCTION OF HOUSES FOR WHICH HE TOOK ADVANCES FROM HIS CLIENT TO MAKE THE EXPENSES ON THEIR BEHALF AND THE AMOUNT OF ADVANCES SO RECEIVED WAS D EPOSITED IN THE BANK ACCOUNT AND WITHDRAWALS WERE MADE ON THIS ACCOUNT F ROM TIME TO TIME TO MEET EXPENSES. DURING THE FIRST APPELLATE PROCEEDIN GS THE LD. CIT(A) GRANTED I.T.A .NO.-291/DEL/2012 (ASSESSMENT YEAR-2007-08) 4 PARTLY RELIEF BY ACCEPTING RECEIVED SHOWN IN THE RE TURN OF INCOME BUT THE LD. CIT(A) REJECTED THE ADDITIONAL EVIDENCES FILED BY T HE ASSESSEE WITHOUT CALLING ANY COMMENTS AND REMAND REPORT FROM THE AO. THE PROCEDURE ADOPTED BY LD. CIT(A) IS NOT ACCORDING TO THE REQUI REMENT OF PROVISIONS OF RULE 46A OF INCOME TAX RULES, 1962 THEREFORE, WARE INCLINED TO HOLD THE AUTHORITIES BELOW HAVE NOT PROVIDED DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE. THE FIRST APPELLATE AUTHORITY HAS REJECTE D THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE WITHOUT FOLLOWING DUE PROC EDURES AS PRESCRIBED IN THE INCOME TAX RULES. 8. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDE RED OPINION THAT THE ASSESSEE WAS NOT PROVIDED DUE OPPORTUNITY OF HEARIN G TO SUPPORT HIS CASE BEFORE THE AUTHORITIES BELOW. THEREFORE, WE FIND TH AT AN APPROPRIATE TO RESTORE THE ENTIRE CONTROVERSY TO THE FILE OF THE A O, WITH A DIRECTION THAT THE AO SHALL FRAME AFRESH ASSESSMENT ORDER AFTER PROVID ING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE WITHOUT BEING PREJUDICED W ITH THE EARLIER ASSESSMENT AND IMPUGNED ORDER. THUS ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE MATTER IS REMITTED BACK TO THE FILE OF THE AO F OR FRAMING FRESH ASSESSMENT AS PER DIRECTIONS HEREINABOVE. ACCORDINGLY, GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. GROUND NOS. 2 TO 9 OF THE ASSESSEE I.T.A .NO.-291/DEL/2012 (ASSESSMENT YEAR-2007-08) 5 9. SINCE BY THE EARLIER PART OF THIS ORDER, WE HAVE RESTORED ALL PROCEEDINGS TO THE FILE OF THE AO FOR FRESH ASSESSM ENT, THEREFORE, OTHER GROUNDS OF THE ASSESSEE DID NOT SURVIVE FOR ADJUDIC ATION ON MERITS AND WE DISMISS THE SAME WITHOUT ANY ELABORATE ADJUDICATION ON MERITS. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/09/2014. SD/- SD/- (G. D. AGRAWAL) (C. M. G ARG) VICE-PRESIDENT JUDICIAL MEMBER DATED: 05/09/2014 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR