Vinod Kumar, New Delhi V. ITO, Ward-62(2), New Delhi

ITA 2915/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6212 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2915/DEL/2019 ASSESSMENT YEAR: 2010-11 VINOD KUMAR, VS. INCOME TAX OFFICER, C-135, VIKAS NAGAR, WARD-62(2), NEW DEL HI PHASE-3, UTTAM NAGAR HASTAL ROAD, UTTAM NAGAR, NEW DELHI (PAN:AJFPK2388F) (ASSESSEE) (RESPONDENT) ASSESSEE BY : MS. POOJA JAIN, CA REVENUE BY : MS. PARUL SINGH, SR. DR ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE IM PUGNED ORDER DATED 25.01.2019 PASSED BY THE LD. CIT(A)-38, NEW DELHI R ELATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT THE WHOLE PROCEEDINGS OF THE CIT (APPEAL S) WERE BAD IN LAW, INCORRECT, ERRONEOUS, AGAINST THE NATURAL JUSTICE A ND ALSO AGAINST THE WELL ESTABLISHED PRACTICES IN THIS REGARD. 2. THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL AND STATED IN PARA NO. 3.2 OF THE APPELLATE ORDER IT IS EVIDENT THAT THE APP ELLANT IS NOT INTERESTED IN FILING ANY DETAILS DURING THE APPELLATE PROCEEDINGS TO AVAIL THE OPPORTUNITY UNDER THE PRINCIPLE OF NATURAL JUSTICE. AS MANY AS THREE (3) NOTICES WERE ISSUED THROUGH SPEED POST AND ITB PORTAL AS NOTED A BOVE. HOWEVER, IT IS A MATTER OF RECORD THAT ANY KIND OF DOCUMENTS OR DETA ILS WAS NOT SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT. BUT 3. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE CIR CUMSTANCES LEADING TO NON APPEARANCE OF APPELLANT AND HIS COUNSEL. 2 IT MAY BE CLARIFIED AT THIS STAGE THAT THE NOTICES WERE NOT ISSUED WITH APPROPRIATE MARGIN OF TIME, AND ALL THE NOTICES HAV E BEEN RECEIVED AFTER THE FIXED DATE. IT IS FURTHER PERTINENT TO BE MENTIONED HEREIN THAT THE NOTICES HAVE BEEN ISSUED IN SUCH A WAY THAT IT COULDNT BE DELIVERED TO THE ASSESSEE BEFORE THE DATE OF HEARING. 3. THAT THE LD. CIT (A) HAS ERRED BY NOT PLACING TH E REAL FACTS ON RECORD, WHICH COULD HAVE ONLY BROUGHT UP BY EITHER THE ASSE SSING OFFICER OR THE FIRST APPELLATE AUTHORITY. 4. THAT THE APPELLANT STATED THAT HE HAS FILED HIS RETURN AND SUBMITTED THE COPY OF REFUND STATUS AS EVIDENCE. FOR THE NATURAL AND FAIR JUSTICE, WE ALL (INCLUDING THE AO AND CIT (A) IF THEY HAVE KNOWLEDGE ABOUT THE FACTS) ARE BOUND TO B RING THE FACTS ON THE DESK OF JUSTICE. BUT AFTER HAVING THE KNOWLEDGE THA T THE ORIGINAL RETURN IS IN THE POSSESSION OF THE AO, HE (AO) DID NOT DISCLOSE/ STATE THE AMOUNT OF TURNOVER FILLED IN THE RETURN FORM, WHEREAS, IT WAS UTMOST IMPORTANT IN THIS PRESENT CASE/MATTER. IT IS CERTAINLY UNFAIR AND AGA INST THE PRINCIPLES OF NATURAL JUSTICE AND ALSO AGAINST THE ESTABLISHED PR ACTICES IN THIS REGARD. 5. THAT THE LD. ASSESSING OFFICER HAS MADE THE ASSE SSMENT ERRONEOUSLY BY CALCULATING, INCOME OF THE APPELLANT/ASSESSEE, @8% OF THE GROSS RECEIPT OF RS. 1,87,29,839/- SHOWN IN ITS STATEMENT WITHOUT VE RIFYING THE TURNOVER FILLED IN ORIGINAL RETURN FORM WHICH WAS PROCESSED ON PAN NO. AKNPK7497G BY THE DEPARTMENT OF INCOME TAX, HENCE IT IS BAD IN LAW. 6. THAT THE LD. CIT(A) HAS ERRED BY PASSING APPELLA TE ORDER ON THE BASIS OF SUSPICION AND DOUBT AND ALSO IGNORING THE EVIDENCE ON RECORD. IT IS PERTINENT TO BE MENTIONED HEREIN THAT NEITHER THE A.O. NOR THE CIT (A) COULD ASSIGN ANY EVIDENCE WHICH COULD ESTABLISH/PRO VE THAT THE RECEIPTS SHOWN IN ITS IS DIFFERENT FROM THE TURNOVER SHOWN IN THE RETURN FILED BY THE ASSESSEE. 7. THAT THE ASSESSEE/APPELLANT FILED AN APPLICATION FOR SUPPLYING THE COPIES OF COMPLETE SET OF INCOME TAX RETURN INCLUDING ENCL OSURES PROCESSED ON PAN NO. AKNPK7497G IN THE OFFICE OF THE ASSESSING OFFIC ER, WARD 62(2), ON DATED 05.03.2019 BUT TILL TODAY THE SAME HAS NOT BE EN SUPPLIED TO THE APPELLANT BY CONCERNED AO. HOWEVER, THESE DOCUMENTS WILL PLAY AN IMPORTANT ROLE IN DECIDING THE APPEAL. THE COPY OF THE APPLICATION IS ENCLOSED. 8. THAT IN THIS ENTIRE EPISODE, THE APPELLANT/ASSES SEE WAS MISLED, CHEATED AND MADE SCAPEGOAT BY THE PREVIOUS TAX CONS ULTANT CUM ACCOUNTANT. 3 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED T HE ISSUES IN DISPUTE AGAINST THE ASSESSEE EX PARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND HE REQUESTED THAT THE I SSUES IN DISPUTE MAY BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. LEARNED DR FOR THE REVENUE DID NOT RAISE ANY OBJ ECTION ON THE REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER, I AM OF THE CONSIDERED VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS DEC IDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE BY PASSING A NON SPEAKING AND EX PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WHIC H IS CONTRARY TO LAW AND FACTS ON THE FILE AND LIABLE TO BE CANCELLED. THERE FORE, IN THE INTEREST OF JUSTICE, I AM CANCELLING THE IMPUGNED ORDER AND SET TING ASIDE THE ISSUES IN DISPUTE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. KEEPING IN VIEW THE NON COOPERATION OF THE ASSES SEE BEFORE THE REVENUE AUTHORITIES, I AM DIRECTING THE ASSESSEE TH ROUGH HIS COUNSEL TO APPEAR BEFORE THE LEARNED FIRST APPELLATE AUTHORITY ON 23.04.2020 AT 10:00 AM. THERE IS NO NEED TO ISSUE NOTICE TO THE ASSESSE E FOR 23.04.2020 BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 4 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 12/02/2020. SD/- [H.S. S IDHU] JUDICIAL MEMBER DATE: 12/02/2020 SH COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES