Rakesh Negi, Dehradun V. ITO, Ward- 2(3), Dehradun

ITA 305/DEL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3996 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIRISH K SHUKLA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 12; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO S . 3 05 & 306 /DEL/201 8 [ASSESSMENT YEAR S : 2 0 1 2 - 1 3 & 2013 - 14 ] SHRI RAKESH NEGI VS. THE I.T.O, LANE C 22, TURNER ROAD WARD - 2 ( 3 ) CLEMENT TOWN, DEHRADUN DEHRADUN PAN: ADFPN 2121 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 2 7 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 08 . 1 0.2018 ASSESSEE BY : SHRI GIRISH K. SHUKLA , ADVOCATE REVENUE BY : S HRI SURENDRA PAL , SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: T H ESE TWO APPEAL S BY THE ASSESSEE ARE PREFERRED AGAINST THE TWO SEPARATE ORDER S OF THE COMMISSIONER OF INCOME TAX [APPEALS] , DEHRADUN DATED 27 . 0 9 .201 7 PERTAINING TO ASSESSMENT YEAR S 20 1 2 - 1 3 & 2013 - 14 . SINCE COMMON ISSUES ARE INVOLVED IN BOTH THESE APPEALS, THEY WERE HEARD TOGETHER AND ARE BE ING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2 2. THE COMMON GRIEVANCE OF THE ASSESSEE IN BOTH THESE APPEALS RELATES TO THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80 IC OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' ] . 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN HOTEL BUSINESS. FOR THE YEARS UNDER CONSIDERATION, THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IC OF THE ACT. WHEN THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT, TH E ASSESSEE WITHDREW THE CLAIM OF DEDUCTION U/S 80IC OF THE ACT. THE ASSESSING OFFICER, ACCORDINGLY, FRAMED THE ASSESSMENT ORDER. 4. WHEN THE MATTER WAS AGITATED BEFORE THE CIT(A), THE HON'BLE UTTARAKHAND HIGH COURT IN THE CASE OF AANCHAL HOTELS PVT. LTD 2016 - TIOL - 1912 DECIDED THAT A HOTEL SET UP IN THE STATE OF HIMACHAL PRADESH OR THE STATE OF UTTARA NCHAL AND HAVING A VALID NOC FROM THE POLLUTION CONTROL COULD BE SAID TO BE ELIGIBLE FOR DEDUCTION U/S 80IC OF THE ACT. 3 5. DRAWING SUPPORT FROM THE JUDGMENT OF THE HON'BLE UTTARAKHAND HIGH COURT, THE ASSESSEE CLAIMED DEDUCTI ON U/S 80IC OF THE ACT ONCE AGAIN BEFORE THE CIT(A). 6. THE CIT(A) CONSIDERED THE CLAIM OF DEDUCTION U/S 80IC OF THE ACT, GATHERED CERTAIN INFORMATION REGARDING THE HOTEL OF THE ASSESSEE AND DECIDED THE ISSUE AGAINST THE ASSESSEE. 7. BEFORE ME, THE LD. AR VEHEMENTLY STATED THAT THE CIT(A) HAS DRAWN ADVERSE VIEW WITHOUT CONFRONTING TO THE ASSESSEE THE INFORMATION GATHERED BY HIM AND HENCE THE ACTION OF THE CIT(A) IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 8. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE CIT(A). 9. I HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT DURING T HE ASSESSMENT PROCEEDINGS, THE ASSESSEE WITHDREW THE CLAIM OF DEDUCTION U/S 80IC OF THE ACT. IT IS EQUALLY TRUE THAT SUBSEQUENTLY, BY THE JUDGMENT OF THE HON'BLE UTTARAKHAND HIGH COURT , 4 THE ASSESSEE COULD BE ELIGIBLE FOR CLAIM OF DEDUCTION U/S 80IC OF THE ACT. WHEN THIS CLAIM WAS MADE BEFORE THE CIT(A), THE CIT(A) DID MAKE SOME ENQUIRY BEHIND THE BACK OF THE ASSESSEE AND DECIDED THE ISSUE AGAINST THE ASSESSEE. 10. IN MY CONSIDERED OPINION, THE CIT(A) OUGHT TO HAVE CONFRONTED THE RESULT OF THE ENQUIRIES MADE BY HIM AND SHOULD HAVE GIVEN REASONABLE OPPORTUNITY TO THE ASSESSE E TO EXPLAIN HIS CASE. I AM OF THE VIEW THAT THE MATTER DESERVES TO BE SET ASIDE TO THE FILE OF THE CIT(A). I ORDER ACCORDINGLY AND DIRECT THE CIT(A) TO DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 11. IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE IN ITA NO S . 3 05 & 306 /DEL/201 8 ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08 . 10 .2018. S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 08 T H OCTOBER , 2018 VL/ 5 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER