Rama Shanker Khanna, New Delhi V. ACIT, New Delhi

ITA 2995/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81912 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SHAMEER SHARMA
• Keywords: Gift
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER & SHRI J.S. REDDY, ACCOUNTANT MEMBER ITA NO. 2995/DEL/2013 ASSESSMENT YEAR: 2009-10 RAMA SHANKER KHANNA, VS. ACIT, 236, TAGORE PARK, CIRCLE 20(1), MODEL TOWN, NEW DELHI. NEW DELHI. AAGPK0608N (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VED JAIN, CA RESPONDENT BY : SH. SHAMEER SHARMA, SR. D R ORDER PER H.S. SIDHU, J.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 25.02.2013 PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS)-XXII, NEW DELHI FOR A.Y. 2009-10 ON THE F OLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BAD, BOTH IN THE EYE OF LAW AND ON FACTS; 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER EX-PARTE WITHOUT PROPER SERVICE OF NOTICE; 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY O F BEING HEARD; 4(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN DISMISSING THE AP PEAL OF THE ASSESSEE WITHOUT GIVING ANY FINDING ON THE MERITS O F THE CASE; (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT APPRECIATING THE FACT THAT ITA NO. 2995/D/2013 SH. RAMA SHANKAR KHANNA 2 CIT(A) IS DUTY BOUND TO DISPOSE OF THE APPEAL FILED ON MERIT AS PER THE FACTS ON RECORD AND THE JUDGMENT OF CIT VS. MULTIPLAN INDIA (P) LTD. 38 ITD 320 (DEL) IS NOT APPLICABLE; 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE AD DITION OF RS. 19,70,000/- MADE BY THE AO ON ACCOUNT OF GIFTS RECE IVED BY THE ASSESSEE; 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE AC TION OF THE AO IN DISALLOWING AN AMOUNT OF RS. 2,16,430/- ON ACCOU NT OF INTEREST PAID TO BANK; 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE AC TION OF THE AO IN MAKING ADDITION OF RS. 56,052/- BY INVOKING THE PROVISION OF SECTION 14A OF THE ACT; 8. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER A NY OF THE GROUNDS OF APPEAL. 2. WE HAVE HEARD THE BOTH PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES SPECIALLY THE IMPUGNED ORDE R PASSED BY THE LD. FIRST APPELLATE AUTHORITY DATED 25/02/2013 IN WHICH THE LD. FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION. FOR THE SAKE OF CONVENIENCE THE RELEVANT PARAGRAPHS OF THE IMPUGNED ORDER I.E. PARA 4-8 ARE REPRODUCED AS UNDER: 4. IN THIS CASE NOTICE U/S 250 WAS ISSUED ON 16/0 3/2012 FIXING THE DATE OF HEARING FOR 25/04/2012. A LETTE R SEEKING ADJOURNMENT WAS FILED ON BEHALF OF M/S RAVI RAMESH & ASSOCIATES ON WHICH THE CASE WAS ADJOURNED TO 02/05/2012. ON THIS DATE THE CASE WAS AGAIN ADJOUR NED ON REQUEST TO 29/05/2012, ON WHICH DATE AGAIN THE CASE WAS ADJOURNED TO 26/06/2012. HOWEVER, NO COMPLIANCE WA S MADE ON THIS DATE I.E. ON 26/06/2012. 5. A FRESH NOTICE WAS SENT ON 31/12/2012 FIXING THE DATE OF HEARING FOR 11/01/2013. HOWEVER, THIS NOTI CE WAS RECEIVED BACK UNSERVED WITH THE COMMENTS LEFT OF THE POSTAL AUTHORITIES ON THE ENVELOPE. 6. SUBSEQUENTLY, ANOTHER NOTICE WAS SENT ON 13/02/2013 FIXING DATE OF HEARING FOR 21/02/2013. AGAIN ITA NO. 2995/D/2013 SH. RAMA SHANKAR KHANNA 3 ON THIS DATE NO COMPLIANCE WAS MADE, NEITHER ANYBOD Y ATTENDED NOR ANY WRITTEN SUBMISSIONS WERE FILED NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED. 7. IN CIT VS. B.N. BHATTACHARYA (1977) 118 ITR 461 (SC), THE HONBLE SUPREME COURT WHILE DEALING WITH THE ISSUE OF PROSECUTION OF APPEAL HAS STATED THAT PRE FERRING AN APPEAL MEANS MORE THAN FORMALLY FILING IT BUT EF FECTIVELY PURSUING IT. THE HONBLE ITAT, DELHI, IN CIT VS. MULTIPLAN INDIA PVT. LTD. AS REPORTED IN 38 ITD 320 (DEL.), WHEN FACED WITH A SIMILAR SITUATION OF NON PROSECUT ION OF APPEAL DISMISSED THE APPEAL OF REVENUE. 8. IN VIEW OF THE ABOVE SITUATION AS DISCUSSED IN P ARA 4 TO PARA 6 IT IS CLEAR THAT THE APPELLANT IS NOT I NTERESTED IN PROSECUTING THE APPEAL. ON THE BASIS OF THE DECISI ONS AS DISCUSSED IN PARA 7, THE APPEAL OF THE ASSESSEE IS, THEREFORE, DISMISSED AT THE VERY OUTSET. 3. AFTER THOROUGHLY GOING THROUGH THE AFORESAID IMP UGNED ORDER PASSED BY THE CIT(A). WE ARE OF THE VIEW THAT THE SAID IMPUGNED ORDER IS CLEARLY VIOLATIVE OF THE EXPRESS PROVISION OF SECTI ON 250(6), WHICH PROVIDES THAT THE APPELLANT ORDERS OF THE CIT(A) ARE TO STAT E THE POINTS RAISING IN THE APPEAL, THE DECISION OF AUTHORITY THEREON AND THE R EASONS FOR SUCH DECISION. THE UNDERLYING RATIONAL OF THE PROVISION IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE TRIBUNAL. SPEAKIN G ORDER WOULD OBVIOUSLY ENABLE A PARTY TO KNOW PRECISE POINTS DECIDED IN HI S FAVOUR OR AGAINST HIM. ABSENCE OF THE FORMULATION OF THE POINT FOR D ECISION FOR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PARTY IN Q UANDARY. SECTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLES OF NATURAL JUSTIC E AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUGNED ORDER PASSED BY THE CIT(A) IN VIOLATION OF THE PROVISIONS OF SECTION 250(6) CA NNOT, THEREFORE, BE SUSTAINED. REGARDING THE DECISION OF THE DELHI BEN CH OF THE TRIBUNAL IN MULTIPLAN INDIA LIMITED (SUPRA) CITED BY THE LD. CI T(A), WE FIND THAT THE SAID DECISION IS CLEARLY DISTINGUISHABLE. SECTION 254 REFERRING TO THE ORDERS OF THE TRIBUNAL CONFERS PLENARY JURISDICTION ON THE TRIBUNAL IN THE MATTER OF PASSING ORDERS U/S 254(1). THERE IS NO S UCH EXPRESS STIPULATION ITA NO. 2995/D/2013 SH. RAMA SHANKAR KHANNA 4 IN SECTION 254 AS CONTAINED UNDER THE PROVISIONS OF SECTION 250(6) RELATING TO THE ORDERS OF LD. FIRST APPELLATE AUTHORITY. TH EREFORE, RELIANCE PLACED BY THE LD. CIT(A) ON MULTIPLAN INDIA LIMITED (SUPRA) I S ENTIRELY MISPLACED. 4. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES E XPLAINED ABOVE, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED B Y THE LD. FIRST APPELLATE AUTHORITY IS NOT SUSTAINABLE IN THE EYE O F LAW. THEREFORE, WE CANCEL THE IMPUGNED ORDER DATED 25.02.2013 PASSED B Y THE LD. CIT(A) BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. KEEPIN G IN VIEW OF THE ISSUES IN DISPUTE AND THE EVIDENCES FILED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT THE ISSUE IN D ISPUTE REQUIRE THOROUGH INVESTIGATION AT THE LEVEL OF AO. THEREFORE, WE SE T ASIDE THE ISSUES IN DISPUTE TO THE AO TO DECIDE THE SAME AFRESH UNDER T HE LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIMS. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16/10/ 2014 SD/- SD/- (J.S. REDDY) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16/10/2014 *KAVITA, P.S. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR ITA NO. 2995/D/2013 SH. RAMA SHANKAR KHANNA 5