M/s. Sunstar Builders Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3342/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4190 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SRIVASTAVA
• Assessee Lawyers: PIYUSH KAMAL S
• Keywords: Opportunity of being heard
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : E : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.3342/DEL/2017 ASSESSMENT YEAR : 2012-13 SUNSTAR BUILDERS PVT. LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AAICS5794C VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI. ITA NOS.3343 TO 3346/DEL/2017 AYS : 2007-08, 2008-09, 2012-13, 2013-14. MDLR AIRLINES PVT. LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AAECM5231C VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI. ITA NOS.3347/DEL/2017 ASSESSMENT YEAR : 2008-09 MDLR ESTATES PVT. LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AAECM5222D VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI. ITA NO.3342 TO 3352/DEL/2017 & 2887/DEL/2017 2 ITA NOS.3348/DEL/2017 ASSESSMENT YEAR : 2008-09 MDLR BUILDERS PVT. LTD., FLAT NO.4, R.R. APARTMENTS, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AAECM5223C VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI. ITA NOS.3349 TO 3352/DEL/2017) ASSESSMENT YEARS : 2005-06 TO 2008-09 NAGESHWAR BUILDERS PVT. LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AACCN0116B VS. DCIT, CENTRAL CIRCLE-14, NEW DELHI. ITA NO.2887/DEL/2017 ASSESSMENT YEAR : 2012-13 RRG BUILDWELL (P) LTD., FLAT NO.4, R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI. PAN: AAECR9333C VS. ITO, WARD-20(3), NEW DELHI. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI GAUTAM JAIN & SHRI PIYUSH KAMAL, ADVOCATES DEPARTMENT BY : SHRI SAMEER SRIVASTAVA, CIT, DR DATE OF HEARING : 03.01.2018 DATE OF PRONOUNCEMENT : 04.01.2018 ITA NO.3342 TO 3352/DEL/2017 & 2887/DEL/2017 3 ORDER PER BENCH: THIS BATCH OF 12 APPEALS BY DIFFERENT, BUT, RELATE D ASSESSEES INVOLVE ASSESSMENT YEARS 2005-06 TO 2008-09, 2012-13 & 2013 -14. SINCE SOME OF THE ISSUES RAISED IN THESE APPEALS ARE COMMON, WE A RE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ALL APPEALS EXCEPT ITA NO.2887/DEL/2017 2. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE ASSESSMENT ORDERS WERE PASSED U/S 153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED ` THE ACT) READ WITH SECTION 144, DETERMINING THE TOTAL INCOME AT DIFFER ENT LEVELS. THE ASSESSEES BELATEDLY APPROACHED THE LD. CIT(A), WHO CONDONED T HE DELAY BUT DISMISSED THE APPEALS IN LIMINE FOR NON-COMPLIANCE BY THE ASSESSEE. IT IS A SETTLED LEGAL POSITION THAT THE FIRST APPELLATE AUTHORITY CANNOT DISMISS AN APPEAL IN LIMINE FOR WANT OF THE ASSESSEES PRESENCE. EVEN IF THE A SSESSEE REMAINS ABSENT, THE CIT(A) IS OBLIGED TO DISPOSE OF THE APPEAL ON MERIT S ALBEIT EX PARTE QUA THE ASSESSEE. SINCE THE LD. CIT(A) INSTANTLY HAS DISMI SSED ALL THESE APPEALS IN LIMINE , WITHOUT GOING ON MERITS, WE CANNOT COUNTENANCE T HE ORDERS UNDER ITA NO.3342 TO 3352/DEL/2017 & 2887/DEL/2017 4 CHALLENGE. WE, THEREFORE, SET ASIDE THE IMPUGNED O RDERS AND REMIT THE MATTER TO HIS FILE FOR DISPOSAL OF APPEALS ON MERIT S, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EES. THE LD. AR HAS UNDERTAKEN TO EXTEND FULL CO-OPERATION TO THE LD. F IRST APPELLATE AUTHORITY DURING THE COURSE OF SUCH FRESH PROCEEDINGS. ITA NO.2887/DEL/2017 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THOUGH THE LD. CIT(A) D ISMISSED THE APPEAL OF THE ASSESSEE ON MERITS, BUT, THE IMPUGNED ORDER HAS BEE N PASSED EX PARTE QUA THE ASSESSEE. THE LD. AR SUBMITTED THAT THE ASSESS EE COULD NOT PARTICIPATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A) FOR SOME JUST IFIABLE REASONS. IT WAS PRAYED THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PUT FORTH ITS CASE BEFORE THE LD. FIRST APPELLATE AUTHORITY, SO T HAT PROPER ADJUDICATION COULD BE DONE. CONCURRING WITH THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THIS MATTER ALSO TO THE FILE OF THE LD. CIT(A) FOR DISPOSING THIS APPEAL AF RESH, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ITA NO.3342 TO 3352/DEL/2017 & 2887/DEL/2017 5 4. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.01.20 18. SD/- SD/- [SUDHANSHU SRIVASTAVA] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 04 TH JANUARY, 2018. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.