Bimlesh, New Delhi V. ITO WARD - 2(5), Noida

ITA 3369/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5395 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Competent authority; Reason to believe; Set aside

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3369/DEL/2019 [ASSESSMENT YEAR: 2010-11] SMT. BIMLESH, VS. ITO, WARD 2(5), H-165B, ADHYAPARK NAGAR, NOIDA NANGLOI, NILOTHI, DELHI 110 041 (PAN: DLVPB0245R) [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. SANDEEP SAPRA, ADVOCATE REVENUE BY : MS. PARUL SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS]-1, NOIDA DATED 31.08.2018 PERTAINING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOW ING GROUNDS:- 1. THAT THE AO AD THE LD. CIT(A) HAVE ERRED ON FACTS A ND IN LAW IN PASSING EXPARTE ORDERS AS THE APPELLANT WAS NOT AFFORDED PROPER AND ADEQUATE OPPORTUNITY OF BEING H EARD AS O NOTICES WERE VALIDLY SERVED ON THE APPELLANT THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE INITIATION OF PROCEEDINGS U/S. 147/148 OF I.T. ACT, IS ILLEGAL INTER ALIA BECAUSE : A) THERE IS NO PROPER APPLICATION OF MIND ON THE PART OF THE AO SO AS TO COME TO AN INDEPENDENT SATISFACTION THA T HE HAD REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT SINCE REASONS HAVE BEEN RECORDED MERELY ON THE BASIS OF AIR INFORMATION. 2 B) THE AO HAS ACTED ON MERE SURMISES AND SUSPICION THEREBY IGNORING THE LEGAL REQUIREMET OF LAW WHICH IS REASON TO BELIEVE AND NOT REASON TO SUSPECT. C) REQUISITE SANCTION AS REQUIRED FROM THE COMPETENT AUTHORITY U/S. 151 OF THE I.T. ACT HAS NOT BEEN TAK EN BY THE AO FOR ISSUING NOTICE U/S. 148. 3. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N NOT ADMITTING THE APPEAL U/S. 249(1)(A) OF I.T. ACT AS THERE IS NO EVIDENCE ON RECORD FOR DEPOSITING APPEAL FILIN G FEE. 4. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N NOT ADMITTING THE APPEAL U/S. 249(4)(B) OF I.T. ACT AS ACCORDING TO HIM NO RETURN HAD BEEN FILED BY THE AP PELLANT. 5. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 15,18,000/- ON ACCOU NT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND AS THE SALE OF AGRICULTURAL LAND IS EXEMPT FROM TAX. 6. WITHOUT PREJUDICE TO GROUND NO. 4 ABOVE, EVE ON MER ITS, THE ADDITION OF RS. 15,18,000/- IS VERY EXCESSIVE. 7. THAT THE APPELLANT RESERVES HER RIGHT TO ADD, AMEN D / MODIFY THE GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HARING LD. COUNSEL FOR THE ASSESS EE STATED THAT LD. CIT(A) HAS DECIDED THE ISSUES AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATI NG THE CLAIM BEFORE THE REVENUE AUTHORITIES, IF THIS BENCH GRANTS AN OPPORT UNITY TO THE ASSESSEE TO DO THE SAME. HE REQUESTED THAT AO HAS ALSO COMPL ETED THE ASSESSMENT U/S. 147/144 OF THE I.T. ACT, 1961 AND HAS NOT PRO VIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING THE CLAIM. HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE ASSESSING OFFICER TO 3 DECIDE THE SAME, AFRESH, AS PER LAW, AFTER GIVING O PPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS FOR PRODUCTION OF ALL THE N ECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. 4. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORD ER DATED 31.8.2018, I FIND THAT LD. CIT(A) HAS DECIDED THE ISSUES IN DISP UTE AGAINST THE ASSESSEE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE AS SESSEE. I AM ALSO OF THE VIEW THAT AO HAS ALSO PASSED THE ASSESSMENT ORDER U/S. 144/147 OF THE I.T. ACT, 1961 WITHOUT GIVING SUFFICIENT OPPORTUNIT Y TO THE ASSESEE FOR SUBSTANTIATING THE CLAIM. THEREFORE, IN THE INTERE ST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE ASSESSING OFFICE R FOR DENOVO PROCEEDINGS. NEEDLESS TO SAY THAT ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD WITH THE LIBERTY TO FILE ANY DOCUMENT/ EVIDENCE IN SUPPORT OF HIS CONTENTION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:19-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT- SMT. BIMLESH, C/O MR. SANDEEP SAPRA, ADV OCATE, C-763, NEW FRIENDS COLONY, NEW DELHI 110 025. 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 4