Shri Ashok Kumar Gupta, New Delhi V. ACIT, New Delhi

ITA 316/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3689 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 19-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI B.K. HALDAR, ACCOUNTANT MEMBER ITA NOS. 316 & 317/DEL/2011 ASSESSMENT YEARS: 2004-05 & 2005-06 ASHOK KUMAR GUPTA, VS. ACIT, 17/83, ANAND PARBAT, CENTRAL CIRCLE 16, THAN SINGH NAGAR, NEW DELHI. NEW DELHI. AALPG4014H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MUKESH SHARMA, AR RESPONDENT BY : SMT. ANUSHA KHURANA, SR. DR ORDER PER I.P. BANSAL, J.M. : BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND THEY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A) DATED 09.11.2010 FOR ASSESSMENT YEARS 2004-05 & 200 5-06. THE GROUNDS OF APPEAL IN BOTH THE YEARS ARE READ AS UNDER: - GROUNDS OF APPEAL FOR A.Y. 2004-05 : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. ITA NOS. 316 & 317/D/2011 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT DECID ING THE VARIOUS GROUNDS OF APPEAL TAKEN IN THE APPEAL MEMO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) IS BOUND TO DECIDE THE APPEAL BY DECIDING THE GROUNDS OF APPEAL AND CANNOT DISMISS T HE APPEAL. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL BY HOLDING THAT THE APPEAL WA S AB INITIO VOID DEFECTIVE EVEN THOUGH NO DEFECTIVE MEMO WAS EVER ISSUED BY THE CIT(A) RIGHT FROM THE DATE O F FILING THE APPEAL. GROUNDS OF APPEAL FOR A.Y. 2005-06 : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT DECID ING THE VARIOUS GROUNDS OF APPEAL RAISED AS PER THE APP EAL MEMO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) IS BOUND TO DECIDE OFF THE APPEA L ON MERITS AND DECIDE THE VARIOUS GROUNDS OF APPEAL RAI SED TO WHICH THE CIT(A) HAS COMPLETELY FAILED. ITA NOS. 316 & 317/D/2011 3 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL WITHOUT DECIDING AS TO WHETHE R THE AO CAN ADOPT THE SALE VALUE OF THE VARIOUS PROPERTI ES ON THE BASIS OF VALUATION REPORT ALONE IGNORING THE RE AL SALE PRICE. 2. BOTH THESE APPEALS HAVE BEEN DISMISSED BY LD. CI T(A) BY WAY OF AN EX-PARTE ORDER QUA THE ASSESSEE. THE APPEAL FOR A.Y. 2004-05 HAS BEEN DISMISSED ON TWO GROUNDS: (1) NON- ENCLOSURE OF COPY OF ASSESSMENT ORDER, DEMAND NOTIC E, TAX PAYMENT CHALLAN AND PROOF OF APPEAL FESS PAID, (2) THE ASSESSEE DID NOT COMPLY WITH THE VARIOUS OPPORTUNIT IES GIVEN FOR HEARING OF THE APPEAL. 3. THE APPEAL FOR A.Y. 2005-06 HAS BEEN DISMISSED O N THE GROUND THAT ASSESSEE DID NOT ATTEND ON VARIOUS DATE S LISTED IN PARA 2.1 OF THE IMPUGNED ORDER. 4. BOTH THE APPEALS HAVE BEEN DISMISSED IN-LIMNE ON ACCOUNT OF AFOREMENTIONED FAILURES ON THE PART OF T HE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE GROUNDS RA ISED BY THE ASSESSEE IN HIS APPEALS. ITA NOS. 316 & 317/D/2011 4 5. THESE APPEALS WERE FIRST FIXED FOR HEARING ON 22 .6.2001 WHEN THE REPRESENTATIVE OF THE ASSESSEE SOUGHT ADJO URNMENT AND HE WAS REQUIRED TO SUBMIT THE PROOF OF PAYMENT OF APPEAL FEES WHICH WAS WHETHER OR NOT PAID FOR FILING THE A PPEAL BEFORE CIT(A) AND THE MATTER WAS ADJOURNED TO 24.6.2011. ON 24.6.2011 THE REPRESENTATIVE OF THE ASSESSEE HAS PR ODUCED BEFORE US COPIES OF THE CHALLANS VIDE WHICH AFOREME NTIONED FEES FOR FILING THE APPEAL WERE SUBMITTED. 6. IN THIS VIEW OF THE SITUATION, AFTER HEARING LD. DR, WE HAVE ARRIVED AT A CONCLUSION THAT THESE APPEALS ARE TO BE RESTORED BACK TO THE FILE OF CIT(A) WITH A DIRECTIO N TO RE-DECIDE THE SAME AS ACCORDING TO PROVISIONS OF LAW, LD. CIT (A) DOES NOT HAVE POWER TO DISMISS THE APPEALS FILED BY THE ASSESSEE IN-LIMNE UNLESS THE APPEAL OTHERWISE IS COMPETENT. THE REASONS STATED BY LD. CIT(A) TO DISMISS THE APPEAL IN-LIMNE FOR BOTH THE YEARS IS NOT BASED UPON THE FACT THAT THE APPEALS ARE INCOMPETENT. THE IN-COMPETENCY OF THE APPEAL FOR A .Y. 2004- 05 MAINLY WAS ON THE GROUND THAT APPEAL FEES WAS NO T PAID. SINCE ASSESSEE HAS PRODUCED BEFORE US THE PROOF REG ARDING PAYMENT OF APPEAL FEES WHICH HAS BEEN PAID ON THE D ATE OF ITA NOS. 316 & 317/D/2011 5 FILING THE APPEAL, THE ASSESSEES APPEAL CANNOT BE SAID TO BE INCOMPETENT FOR WANT OF PAYMENT OF APPEAL FEES. FO R THE ISSUE THAT LD. CIT(A) HAS NO POWER TO DISMISS THE APPEALS FILED BEFORE HIM IN-LIMNE DESPITE THE FACT THAT THE APPEA L IS COMPETENT, IS SUPPORTED BY THE DECISION OF ITAT AHM EDABAD IN THE CASE OF GUJARAT THOMAS BIOSCENE LTD. VS. JCI T 74 ITD 334 (AHMD.), WHEREIN IT HAS BEEN HELD THAT IT IS OB LIGATORY BY CIT(A) TO PASS A SPEAKING ORDER STATING POINTS RAIS ED IN APPEAL, HIS DECISION THEREON REASON FOR SUCH DECISI ON. PLENARY JURISDICTION IS CONFERRED ON THE TRIBUNAL I N THE MATTER OF PASSING ORDER U/S 254(1). THERE IS NO SUCH STIP ULATION U/S 250(6) AS SUCH, IT IS NOT POSSIBLE FOR CIT(A) TO DI SMISS THE APPEAL IN-LIMNE. THE MANDATE OF LAW MAKES IT VERY CLEAR THAT CIT(A) IS DUTY BOUND TO DECIDE THE ISSUE ON MERITS. 7. IN VIEW OF ABOVE DISCUSSION, WE SET ASIDE BOTH T HE ORDERS PASSED BY LD. CIT(A) AND RESTORE THESE APPEA LS TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE BOTH THESE A PPEALS AFTER GIVING ASSESSEE A REASONABLE OPPORTUNITY OF HEARING . AFTER GIVING SUCH REASONABLE OPPORTUNITY OF HEARING LD. C IT(A) WILL RE-DECIDE THE APPEALS FILED BEFORE HIM AS PER PROVI SIONS OF LAW. WE DIRECT ACCORDINGLY. ITA NOS. 316 & 317/D/2011 6 8. IN THE RESULT, BOTH THE APPEALS ARE TREATED AS A LLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 24.06.2011 SD/- SD/- (B.K. HALDAR) (I.P. BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.6.11 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR