Mamchand, Ghaziabad V. ITO WARD - 1(4), Ghaziabad

ITA 3006/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5392 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Assessee Lawyers: VINAY VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c); 201; 274; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NOS. 3006 & 3007/DEL/2019 [ASSESSMENT YEAR: 2009-10] MAMCHAND, VS. ITO, WARD 1(4), C/O SANJAY PARASHAR, ADVOCATE, GHAZIABAD 47-A, FF, DEVIKA CHAMBER, OPP. MAHALAXMI MALL, RDC, RAJ NAGAR, GHAZIABAD 201 002 (PAN: BVQPM9373J) [APPELLANT] [RESPONDENT] ASSESSEE BY: SHRI SAHIL SHARMA, ADVOCATE & SHRI VINAY VERMA, ADVOCATE REVENUE BY : MS. PARUL SINGH, SR. DR. ORDER THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME T AX [APPEALS], GHAZIABAD DATED 30.11.2018 & 31.12.2018 PERTAINING TO ASSESSMENT YEAR 2009-10 IN QUANTUM APPEAL AS WEL L AS IN PENALTY APPEAL. SINCE BOTH THE APPEALS WERE RELATI NG TO SAME ASSESSMENT YEAR, HENCE, THE SAME WERE HEARD TOGETHE R AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. THE GROUNDS RAISED IN ITA NO. 3006/DEL/2019 (AY 2009-10) READ AS UNDER:- 1. THAT THE ORDER PASSED BY THE REVENUE AUTHORITIES ARE AGAINST NATURAL JUSTICE GIVING NO ADEQUATE OPPORTUNITY TO THE ASSESSEE, CONFIRMING THE ADDITION. 2 2. THAT THE ORDER OF THE AO U/S. 144 OF THE ACT AND ORDER OF THE LD. CIT(A) DISMISSING THE APPEAL BEING BARRED BY LIMITATION ON ACCOUNT OF DELAY OF 6 DAYS DESERVED TO BE SET ASIDE. 3. THAT THE PROCEEDINGS U/S. 147/148 APPLIED TO TH E CASE ARE BAD IN LAW. 4. THAT EVEN ON MERITS NO CAPITAL GAIN IS LEVIABLE AS THE LAND SOLD IS AGRICULTURAL. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY/ AMEND OR ADD ANY ONE OR MORE GROUNDS. 3. THE GROUNDS RAISED IN ITA NO. 3007/DEL/2019 (AY 2009-10) READ AS UNDER:- 1. THAT THE REVENUE AUTHORITIES ERRED BOTH ON FACTS AND IN LAW IMPOSING A PENALTY OF RS. 12945000 U/S. 271(1)(C) OF THE I.T. ACT. 2. THAT NO PENALTY IS LEVIABLE AS THE NOTICE U/S. 274 READ WITH SECTION 271 DATED 10.11.2016 IS BAD IN LAW FOR WANT OF SPECIFIC CHARGE AGAINST THE ASSESSEE. 3. THAT EVEN OTHERWISE PENALTY HAS BEEN LEVIED BY BOTH AUTHORITIES WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. THAT THE PENALTY IS NOT LEVIABLE AS NO TAX IS DUE BECAUSE NO CAPITAL GAIN IS ATTRACTED AS THE ASSET SOLD IS AGRICULTURAL LAND. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY/ AMEND OR ADD ANY ONE OR MORE GROUNDS. 3 4. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT IN BOTH THE APPEALS LD. CIT(A) HAS PASSED THE EXPA RTE IMPUGNED ORDERS WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE REQUESTED THAT THE ISSUES IN DISPUTE IN BOTH THE AP PEALS, MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 5. ON THE CONTRARY, LD. DR RELIED UPON THE IMPUGNE D ORDER. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I AM OF THE VIEW THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HERD TO THE ASSESSEE IN BOTH THE APPEALS. 6.1 KEEPING IN VIEW OF THE NON-COOPERATION OF THE A SSESSEE, I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEA R BEFORE THE LD. CIT(A) ON 27.04.2020 AT 10.00 AM FOR HEARING. THERE IS NO NEED TO ISSUE THE NOTICE BY THE LD. CIT(A) TO THE ASSESS EE, SINCE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT . 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:19-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI