Sh. Uma Sharan Sharma, Delhi V. ACIT, New Delhi

ITA 3016/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9616 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Principle of natural justice; TDS
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 3016/DEL/2017 ASSESSMENT YEAR: 2012-13 SH. UMA SHARAN SHARMA VS. ACIT, CIRCLE 32(1), 34/1, GF, NEEL KANTH APARTMENT, NEW DELHI MEHRAULI NEW DELHI 110 030 (PAN: AQCPS0304B) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MS. ASHIMA NEB, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 09.03.2017 OF THE LD. CIT(APPEALS)-11, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWIN G GROUNDS OF APPEAL: - 1(I). THAT ON FACTS AND CIRCUMSTANCE OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING VARIOUS ADDI TIONS AND DISALLOWANCES MADE BY THE ASSESSING OFFICER WITHOUT PROPER OPPORTUNITY AND ADJUDICATING THE ISSUES ON MERITS. (II) THAT THE IMPUGNED ORDER BEING A NON-SPEAKING ORDER IN ABSENCE OF PROPER ADJUDICATION OR REASONABLE OPP ORTUNITY, THE SAME IS ILLEGAL AND BAD IN LAW. 2(I). THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING ADDITION OF RS. 2 27,38,8801- ULS 68 BEING UNDISCLOSED INCOME ON ACCO UNT OF DIFFERENCE BETWEEN AMOUNT BILLED AND AMOUNT APPEAR ING IN FORM 26AS ON WHICH TDS WAS DEDUCTED. (II) THAT THE APPELLANT HAVING DISCLOSED INCOME ON THE BASIS OF INVOICES RAISED AND AUDITED BOOKS OF ACCOU NT, THERE IS NO JUSTIFICATION FOR MAKING NOTIONAL ADDITION ON HYPOTHETICAL BASIS. 3(I). THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING DISALLOWANC E OF RS. 41,313/- ULS 40(A)(IA) ON THE ALLEGED GROUND OF NON - DEDUCTION OF TDS IN RESPECT OF INTEREST PAYMENT ON CAR LOAN. (II). THAT THE PAYMENT HAVING BEEN MADE TO NON BAN KING FINANCE CO. AND SUBJECTED TO TAX IN ITS HANDS, THE RE IS NO CASE OF ANY DISALLOWANCE IN TERMS OF SECOND PROVISO TO 40(A)(IA) OF THE INCOME TAX ACT, 1961 AND SAME IS I LLEGAL AND MISCONCEIVED. 4(I). THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING DISALLOWANC E OF RS. 1,08,000/- ULS 40(A)(IA) ON THE ALLEGED GROUND OF NON DEDUCTION OF TDS ON PAYMENT OF RENT. (II). THAT THE PAYMENT OF RENT BEING LESS THAN THE THRESHOLD LIMIT PRESCRIBED ULS 1941, THERE IS NO CASE OF ANY DEFAULT IN TERMS OF PROVISIONS OF SECTION 40(A)(IA) READ WITH 1941 AND AS SUCH THE DISALLOWANCE IS ON ARBITRARY AND MECHAN ICAL BASIS WITHOUT PROPER APPRECIATION OF LEGAL PROVISI ONS. 5. THAT THE ORDERS OF THE LOWER AUTHORITIES AS FRAM ED ARE AGAINST THE FACTS OF THE CASE AND BAD IN LAW. 6. THAT THE ASSESSEE CRAVES THE RIGHT TO ADD, AMEND , DELETE OR SUBSTITUTE ANY GROUND OF APPEAL AS MAY BE NECESS ARY AND IN THE INTEREST OF JUSTICE. 3 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, AS SESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECU TE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR A DJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. AFTER HEARING LD. DR AND PERUSING THE RELEVANT RECORDS, ESPECIALLY THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT LD. CIT(A) HAS PASSED THE EXPARTE ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5.1 IN THIS REGARD, WE DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS HELD THAT EVEN A N ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. 4 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENT, AS AFORESAID, WE REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH AND PASS A SPEAKING ORDER BY CONSIDER ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASS ESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . HOWEVER, THE ASSESSEE IS DIRECTED TO FILE ALL THE EVIDENCES/DOCUMENTS ETC. BEFORE HIM TO SUBSTANTIATE HIS CASE. ASSESSEE IS ALSO DIRECTED NOT TO TAKE ANY UNNECESSA RY ADJOURNMENT IN THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 04/07/2019. SD/- SD/- (B.R.R. KUMAR) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED:04/07/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR 5