Rakhi Gupta, New Delhi V. ITO, Ward- 36(4), New Delhi

ITA 3094/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1833 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MEEL
• Assessee Lawyers: RAKESH TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, HON BLE VICE PRESIDENT ITA NO. 3094 /DEL/2018 : ASSTT. YEAR : 2014 - 1 5 RAKHI GUPTA, E - 1, MODEL TOWN, NEW DELHI - 110009 VS INCOME TAX OFFICER, WARD - 36(4 ) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A HIPM2287N ASSESSEE BY : SH. RAKESH TIWARI, CA REVENUE BY : SH. PRADEEP KUMAR MEEL , SR. DR DATE OF HEARING : 22 . 10 .20 1 8 DATE OF PRONOUNCEMENT : 06 .1 1 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 19.03 .2018 OF LD. CIT(A) - 12 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ACTION OF COMMISSIONER OF INCO ME TAX (A) IN PASSING EX - PARTE ORDER WITHOUT GIVING THE PROPER OPPORTUNITY OF BEING HEARD IS UNJUST, ILLEGAL, ARBITRARY AND AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 2. ACTION OF COMMISSIONER OF INCOME TAX(A) IN TREATING EXEMPTED LONG TERM CAPITAL GAIN OF RS.29,99,400/ - AS NON - GENUINE AND MAKING ADDITION UNDER SECTION 68 OF INCOME TAX ACT IS UNJUST, ILLEGAL, ARBITRARY AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE ASSESSEE CRAVES TO ADD, AMEND, ALTER, SUBMIT AND WITHDRAW ANY GROUND BEF ORE THE APPEAL IS HEARD. ITA NO . 3094 /DEL /201 8 RAKHI GUPTA 2 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 1 RELATES TO THE PASSING OF EX - PARTE ORDER BY THE LD. CIT(A) WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E - FILED THE RE TURN OF INCOME ON 27.03.2015 DECLARING AN INCOME OF RS.3,61,634/ - AFTER CLAIMING DEDUCTION U/S VI - A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AMOUNTING TO RS.17,077/ - . THE SAID RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THE AO, HOWE VER, FRAMED THE ASSESSMENT AT AN INCOME OF RS.33,61,030/ - BY MAKING THE ADDITION OF RS.29,99,400/ - U/S 68 OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO CONFIRMED THE SAID ADDITION BY PASSING THE EX - PARTE ORDER. TH E LD. CIT(A) OBSERVED THAT THE ASSESSEE EITHER SOUGHT ADJOURNMENT ON ONE GROUND OR OTHER WITHOUT SUBSTANTIATING THE REASON FOR THE ADJOURNMENT. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE AND PROPER OPPORTUNITY W AS NOT PROVIDED BY THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE AO IN ARBITRARY MANNER. 7. IN HIS RIVAL SUBMISSION, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE DID NOT COMPLY THE NOTICES IS SUED BY THE LD. CIT(A), SO THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL OF THE ASSESSEE EX - PARTE. 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FA CT THAT THE LD. CIT(A) DECIDED THE APPEAL EX - PARTE. HE SIMPLY STATED THAT THE NOTICE DATED ITA NO . 3094 /DEL /201 8 RAKHI GUPTA 3 01.03.2018 WAS ISSUED TO THE ASSESSEE FOR HEARING ON 16.03.2018. HOWEVER, THE ASSESSEE FURNISHED A LETTER OF ADJOURNMENT ALONGWIT H P OWER OF A TTORNEY ON DAK COUNTER. FROM THE ABOVE OBSERVATION OF THE LD. CIT(A), IT IS NOT CLEAR AS TO WHAT WERE THE REASONS FOR SEEKING THE ADJOURNMENT. IT IS ALSO NOT BROUGHT ON RECORD AS TO WHETHER THE REASONS GIVEN BY THE ASSESSEE FOR SEEKING THE ADJOURNMENT WERE GENUINE. I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE AND THE MAXIM AUDI ALTERAM PARTEM WHICH MEANS THAT NOBODY SHOULD BE CONDEMNED UNHEARD, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORD E R P RONOUNCED IN THE COURT ON 06 /11 / 2018 ) SD/ - (N. K. SAINI) VICE PRESIDENT DAT ED: 06 /11 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESP ONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR