Shri Bhup Singh, Ghaziabad V. ITO, Ghaziabad

ITA 3274/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9625 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY KAPOOR
• Assessee Lawyers: SANJAY PARASHAR
• Keywords: Opportunity of being heard; Set aside
• Section: 54B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 3274/DEL/2017 (ASSESSMENT YEAR: 2009-10) BHUP SINGH, S/O. LATE SHRI DHARA SINGH, VILLAGE NISTAULI, GHAZIABAD PAN-AHNPV3829Q VS ITO, WARD - 1(2), CGO COMPLEX - 1, HAPUR CHUNGI, GHAZIABAD APPELLANT RESPONDENT APPELLANT BY SH. SANJAY PARASHAR, ADV RESPONDENT BY SH. SANJAY KAPOOR, SR. DR ORDER PER ANADEE NATH MISSHRA, AM [A] THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAI NST IMPUGNED APPELLATE ORDER DATED 31.03.2017 OF LEARNED COMMISS IONER OF INCOME TAX (APPEALS), GHAZIABAD. THE GROUNDS OF APP EAL ARE AS UNDER:- 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WI THOUT PROVIDING DUE OPPORTUNITY. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WI THOUT ADVERTING TO THE MERITS OF THE CLAIM, AND THROUGH A COMPLETELY NON-SPEAKING ORDER. 3. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DENYING THE BENEFIT AS AVAILABLE U/S. 54B OF THE ACT TO THE APPELLANT, IN A SUM OF R S. 6579388. ITA NO: - 3274/DEL/2017 PAGE | 2 4. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 2052030 ON ACCOUNT OF ALLEGED DIFFERENCE IN EXPLAIN ED RECEIPTS. [B]. ASSESSMENT ORDER DATED 31.3.2015 WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 147/143(3) OF I.T. ACT IN WHICH TOTAL INCOME WAS ASSESSED AT RS. 86,31,418/- AS AGAINST R ETURNED INCOME OF NIL AS PER FOLLOWING COMPUTATION: IN RESULT, INCOME IS COMPUTED AS UNDER:- INCOME SHOWN NIL ADD:- (I). ADDITION (AS DISCUSSED IN PARA 3.3) RS. 65,79,388/- (II). ADDITION (AS DISCUSSED IN PARA 4) RS. 20,52 ,030/- TOTAL ADDITION RS. 86,31,418/- TOTAL INCOME RS. 86,31,418/- AGRICULTURAL INCOME FOR RATE PURPOSE RS. 2,55,970/- . [C]. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE TH E LD. CIT(A). DURING APPELLATE PROCEEDINGS BEFORE LD. CIT(A), THE ASSESSEE DID NOT AVAIL OF OPPORTUNITIES FOR HEARING PROVIDED BY THE LD. CIT(A). IMPUGNED APPELLATE ORDER DATED 31.3.2017 WAS PASSED BY THE LD. CIT(A), DISMISSING THE ASSESSEES APPEAL FOR WANT O F PROSECUTION AS WELL AS ON MERITS. AGGRIEVED AGAIN, THE ASSESSEE HA S FILED THIS PRESENT APPEAL IN INCOME TAX APPELLATE TRIBUNAL (IT AT FOR SHORT). AT THE TIME OF HEARING BEFORE US ON 17.9.2019 AND AGAI N ON 19.9.2019, IT WAS SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSE E, THAT THE ONLY PRAYER FROM ASSESSEES SIDE PRESENTLY IS THAT THE D ISPUTED ISSUES ITA NO: - 3274/DEL/2017 PAGE | 3 RAISED IN THIS APPEAL MAY BE REMANDED BACK TO THE L D. CIT(A) FOR FRESH ADJUDICATION ON MERITS. IT WAS SUBMITTED BY H IM THAT THE ASSESSEE WAS PREVENTED FROM AVAILING OF THE OPPORTU NITIES PROVIDED BY THE LD. CIT(A) BECAUSE OF PROLONGED ILLNESS OF S HRI. SANJAY PARASHAR, ADVOCATE, WHO WAS AUTHORIZED BY THE ASSES SEE TO REPRESENT THE ASSESSEE DURING APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). SHRI. SANJAY PARASHAR, ADVOCATE MADE PERSON AL APPEARANCE BEFORE US ON BOTH THE AFORESAID DATES OF HEARING I. E. 17.9.2019 AND 19.9.2019. AN AFFIDAVIT DEPOSED BY SHRI. SANJAY PAR ASHAR WAS ALSO FILED ALONGWITH THE MEDICAL PAPERS. THE RELEVANT PO RTION OF THE AFFIDAVIT IS REPRODUCED AS UNDER: THE DEPONENT HEREBY SOLEMNLY AFFIRMS AND STATES AS UNDER: 1). THAT THE DEPONENT, IN THE CAPACITY OF COUNSEL F OR THE ABOVE NAMED APPELLANT, HAD FILED APPEAL ON BEHALF O F THE APPELLANT BEFORE LD. CIT(A), GHAZIABAD AND IS W ELL CONVERSANT WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AND COMPETENT TO SWEAR THIS AFFIDAVIT. 2). THAT DURING FINANCIAL YEAR 2016-17, THE DEPONEN T HAD BEEN KEEPING POOR/ILL HEALTH ON ACCOUNT OF LAPROSCOPIC HERNIA PREPERITIONEAL INGUINAL BILATERAL PROBLEMS AND COULD NOT CONCENTRATE ATTENTION ON PROFESSIONAL ASSIGNMENTS. 3). THAT ULTIMATELY, WHEN THE MEDICAL/ILL HEALTH R ELATED PROBLEMS BECAME SO ACUTE, UNBEARABLE AND INTOLERABL E, THE DEPONENT WAS ADVISED FOR OPERATION ON URGENT BA SIS, CONSEQUENTLY THE DEPONENT HAD TO BE ADMITTED IN COLUMBIA ASIA HOSPITAL, GHAZIABAD. THE RELEVANT SUPPORTING MEDICAL DOCUMENTS OF COLUMBIA HOSPITAL A RE ENCLOSED, FORMING PART OF THIS AFFIDAVIT. ITA NO: - 3274/DEL/2017 PAGE | 4 [D]. AT THE TIME OF HEARING BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT EXPRESS ANY OBJECTION TO THE PRAYER OF THE ASSESSEE REQUESTING THAT ALL THE DISPUTED ISSUES BE REMANDED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ORDER OF ME RITS. IN VIEW OF THE FOREGOING, AND AFTER HEARING BOTH SIDES, WE HEREBY SET ASIDE THE AFORESAID IMPUGNED ORDER DATED 31.03.2015 OF THE LD . CIT(A) WITH THE DIRECTION TO PASS A FRESH ORDER ON MERITS AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSEE IS DIRECTED TO PRESENT HIMSELF IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE BEFORE THE LD. CIT(A) ON 26.11.2019 TO RECEIVE NOTICE OF HEARING. THE ASSESSEE IS FURTHER DIRECTED TO COO PERATE IN THE DISPOSAL OF THE APPELLATE PROCEEDINGS BEFORE THE LD . CIT(A) AND TO NOT SEEK ANY ADJOURNMENTS EXCEPT ON COMPELLING GROU NDS. THIS APPEAL IS DISPOSED OF IN ACCORDANCE WITH THE AFORES AID DIRECTIONS. (E). IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 26.09.2019. SD/- SD/- (H.S. SIDHU) (ANADEE NA TH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 26.09.2019 SH COPY FORWARDED TO: ITA NO: - 3274/DEL/2017 PAGE | 5 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED 19.09.2019 DRAFT PLACED BEFORE AUTHOR APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. DATE OF UPLOADING ON THE WEBSITE 26.09.2019