Siddharth Manohar, V. ACIT circle I,

ITA 3271/DEL/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2287 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-12-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 11-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Capital asset; Principle of natural justice; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 3271 /DEL/2007 ASSESSMENT YEAR: 1999-2000 SIDHARTH MANOHAR, VS. ACIT, C/O MR. S.K. GUPTA, ADVOCATE, CIRCLE-1, BHANISALI GROUNDS, 57, SAKET, MEERUT. MEERUT. PAN NO. AHEPM2248M (APPELLANT) (RESPONDENT) & ITA NOS. 3272, 3273 & 3650 /DEL/2007 ASSESSMENT YEARS: 1999-2000, 01-02 & 02-03 SHASHANK MANOHAR, VS. ACIT, C/O MR. S.K. GUPTA, ADVOCATE, CIRCLE-1, INCOME TAX OFFICE, 57, SAKET, MEERUT. BHAINSALI GROUNDS, MEERUT. PAN NO. AAIPM3623M (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. MONA MOHANTY, DR ORDER PER I.P. BANSAL, J.M. ALL THESE APPEALS ARE FILED BY THE ASSESSEE AND T HEY ARE DIRECTED AGAINST IDENTICAL ORDERS PASSED BY CIT(A) DATED 05. 01.07 IN THE CASES OF RESPECTIVE ASSESSEES FOR THE RESPECTIVE ASSESSMENT YEARS. ALL THE ORDERS ARE EX-PARTE ORDER PASSED BY LD. CIT(A). THE GROUN DS OF APPEAL IN ALL THE CASES ARE IDENTICAL EXCEPT DIFFERENCE IN CERTAIN FI GURES AS MENTIONED IN GROUND NO. 1. FOR THE SAKE OF CONVENIENCE THE GROU NDS OF APPEAL IN ITA NO. 3271/DEL/07 ARE BEING REPRODUCED: - ITA NOS. 3271, 3272, 3273 & 3650/07 2 1. THAT THE LD. CIT(A) ERRED IN UPHOLDING THE AOS CONTENTION IN FRAMING THE ASSESSMENT U/S 147/143(3) ON INCOME OF RS. 35,0 00/- + AGRICULTURAL INCOME OF RS. 18,000/- VIDE ORDER DATE D 31.03.2005. THAT ASSESSMENT SO FRAMED IS WRONG, UNWARRANTED, IL LEGAL, ARBITRARY AND WITHOUT ANY BASIS. 2. THAT LD. CIT(A) ERRED IN UPHOLDING THE AOS CONT ENTION, THAT TRANSFER OF LAND HAS NOT TAKEN PLACE ON THE DATE OF AGREEMEN T. THAT AS PER FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER PROV ISION OF SEC. 2(47) OF THE I.T. ACT, 1961, CAPITAL GAIN OUGHT TO HAVE BEEN ASSESSED IN THE YEAR UNDER CONSIDERATION. THAT LD. CIT(A) HAS ERRED IN HOLDING THAT THE CAPITAL GAIN SHOULD BE TAXED AS AND WHEN THE TRANSFER OF PLOTS TOOK PLACE. THE FINDING OF THE L D. CIT(A) IN THIS REGARD IS ARBITRARY UNJUST, IMPROPER AND BAD IN LAW . 3. THAT FACTS AND CIRCUMSTANCES OF THE CASE HAVE NO T BEEN CORRECTLY APPRECIATED AND THE SAME AS PUT FORWARD BY THE ASSE SSEE OUGHT TO HAVE BEEN ACCEPTED. NON ACCEPTANCE OF THE SAME IS WRONG, UNWARRANTED, UNJUSTIFIED AND ARBITRARY. 4. THAT PROPER OPPORTUNITY FOR REPRESENTING THE FAC TS AND CIRCUMSTANCES OF THE CASE WAS NOT ALLOWED. THE NON ALLOWANCE OF T HE SAME IS WRONG, UNWARRANTED AND AGAINST THE PRINCIPLES OF NA TURAL JUSTICE. 5. THAT ASSESSEE RESERVES HIS RIGHT TO ADD/AMEND OR MODIFY ANY GROUND OR GROUNDS OF APPEAL. 2. IT IS OBSERVED THAT ONE OF THE MAIN GRIEVANCES O F THE ASSESSEE IS THAT PROPER OPPORTUNITY FOR REPRESENTING THE FACTS AND C IRCUMSTANCES OF THE CASE WAS NOT ALLOWED AND THE NON-ALLOWANCE OF THE SAME I S AGAINST THE PRINCIPLES OF NATURAL JUSTICE. A COMMUNICATION HAS BEEN RECEIVED FROM THE COUNSEL OF THE ASSESSEE SHRI S.K. GUPTA VIDE WHICH IT IS STATED THAT APPEALS IN RESPECT OF SHESHANK MANOHAR AND MANISH MITTAL AR E REQUIRED TO BE CLUBBED WITH THESE APPEALS AS THOSE APPEALS ALSO RA ISED IDENTICAL ISSUES AND THESE APPEALS SHOULD BE FIXED AT NEXT CAMP AT M EERUT. HOWEVER, NOBODY WAS THERE TO TAKE NOTE OF THE PROCEEDINGS AN D THE SAID LETTER HAS ITA NOS. 3271, 3272, 3273 & 3650/07 3 BEEN SENT ONLY THROUGH COURIER. IT MAY BE MENTIONE D HERE THAT SIMILAR LETTER WAS ALSO FILED BY THE ASSESSEE ON EARLIER DATE ALSO WHICH WAS 03.11.08 AND DUE TO THAT LETTER ONLY THESE APPEALS WERE CLUBBED. WE HAVE AT NEXT MEERUT CAMP CANNOT BE ACCEPTED AS IT IS NOT CERTAIN THAT W HETHER OR NOT ANY CAMP WILL BE HELD AT MEERUT. MOREOVER THE ORDER OF CIT( A) IN ALL THESE APPEALS IS EX-PARTE ORDER AND THE GRIEVANCE OF THE ASSESSEE IS THAT THE ORDER HAS BEEN PASSED BY HIM WITHOUT AFFORDING THE ASSESSEE A REAS ONABLE OPPORTUNITY OF HEARING. THEREFORE, THE REQUEST OF LD. AR OF THE A SSESSEE WAS NOT EXCEEDED AND THESE APPEALS WERE PRECEDED TO BE HEAR D EX-PARTE TO QUA THE ASSESSEE AFTER HEARING LD. DR. 3. LD. DR RELYING ON THE ORDER OF CIT(A) PLEADED TH AT OPPORTUNITY WAS GIVEN TO THE ASSESSEE. THE ASSESSEE DID NOT AVAIL THOSE OPPORTUNITIES AND, THEREFORE, THE CIT(A) WAS RIGHT IN DECIDING THE ISS UES AGAINST THE ASSESSEE AND THUS, SHE PLEADED THAT ORDER OF LD. CIT(A) SHOU LD BE UPHELD. 4. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF LD. CIT(A). IN PARA 4 LD. CIT(A) HAS OBSERVED THAT THE CASE WAS FIXED ON MANY OCCASIONS BUT NO SUBMISSIONS HAVE BEEN MADE IN SUPPORT OF GROUNDS OF APPEAL RAISED IN APPEAL AND THEN HE PROCEEDED TO DECIDE THE APPEAL A FTER CONSIDERING THE FACTS AND AFTER EXAMINING THE ASSESSMENT RECORD. T HE LD. CIT(A) HAS PROCEEDED TO DECIDE THE APPEAL ON THE GROUND THAT D URING THE ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS SUFFICIENT OP PORTUNITY IS BEING GRANTED. HOWEVER, IT IS NOT STATED THAT IN WHAT MA NNER THOSE OPPORTUNITIES WERE GIVEN. IT IS ALSO NOT STATED THAT ON WHICH DA TES THE ASSESSEE HAS MADE THE DEFAULTS. THEREFORE, KEEPING IN VIEW THE INTEREST ON JUSTICE, WE ITA NOS. 3271, 3272, 3273 & 3650/07 4 ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTOR ED BACK TO THE FILE OF CIT(A) WITH A DIRECTION TO GRANT THE ASSESSEE A PRO PER OPPORTUNITY OF HEARING AND AFTER GRANT OF SUCH OPPORTUNITY OF HEAR ING THE APPEALS WILL BE DECIDED AFRESH AS PER LAW. WE DIRECT ACCORDINGLY. AS WE ARE RESTORING THE PRESENT APPEALS TO THE FILES OF CIT(A), WE DO NOT E XPRESS ANY OPINION ON MERITS AS THE ISSUES WILL BE DECIDED BY THE LD. CIT (A) AFRESH AS PER LAW. 5. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTIC AL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.09 (SHAMIM YAHYA) (I.P. BANSAL ) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: *KAVITA CHOPRA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR