M/s. Rajendra Kumar Jain (Bagrecha), Delhi V. ITO, New Delhi

ITA 3384/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4240 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VAS HANTHAN
• Keywords: Opportunity of being heard; Accommodation entries; Right to appeal; Condonation of delay
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. N.K. SAINI, ACCOUNTANT MEMBER ITA NO. 3384DEL/2017 ASSTT. YEAR 2008-09 RAJENDRA KUMAR JAIN (BAGRECHA) PROP. BAGRECHA GEMS, 2863, 1 ST FLOOR, CHAIL PURI, KINARI BAZAR, CHANDANI CHOWK DELHI VS. ITO WARD -47(3) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAACO8029Q APPELLANT BY : NONE RESPONDENT BY : SH. T. VAS HANTHAN, SR. DR DATE OF HEARING : 18 .0 9 .201 7 DATE OF PRONOUNCEMENT: 25 . 9 .201 7 ORDER PER N.K.SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 27.03.2017 OF CIT(A)-16, NEW DELHI. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. I, THE REFORE, PROCEED EX-PARTE QUA THE ASSESSEE. 3. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL REL ATES TO THE EX PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING AN OPPORTU NITY OF BEING HEARD AND IN CONFIRMING THE ADDITION OF RS. 12,56,860/- MADE BY AO U/S 147 R.W.S 143(3) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO. 3384/DEL/2017 RAJENDRA KUMAR JAIN 4. FACTS OF THE CASE IN BRIEF ARE THAT AN ACTION U/ S 147 OF THE ACT WAS TAKEN BY THE AO ON THE BASIS OF INFORMATION RECEIVED FROM DIRECTOR GENERAL OF INCOME TAX (INVESTIGATION WING) THAT THE ASSESSEE H AD RECEIVED ACCOMMODATION ENTRIES. THE AO ISSUED THE NOTICE U/S 148 OF THE ACT. IN RESPONSE THE ASSESSEE VIDE REPLY DATED 20.11.2015 S TATED THAT HIS ASSESSMENT FOR THE ASSESSMENT YEAR 2012-13 HAD BEEN COMPLETED BY THE AO AT KOLKATA. HE FURNISHED THE COPY OF ASSESSMENT ORDER AND COPY OF ITR ACKNOWLEDGEMENT FILED ELECTRONICALLY IN SUPPORT OF HIS CONTENTION. HOWEVER, THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS. 15,05,650/- BY MAKIN G THE ADDITION OF RS. 12,56,860/-. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX-PARTE BY OBSERVING AS UNDER :- I HAVE PERUSED THE SUBMISSION OF THE LD. AR, THE FACTUAL POSITION IS THAT THE APPELLANT SHOULD HAVE FILED THE APPEAL AS PROVIDED IN RULE 45 OF INCOME TAX RULES, 1962 AND CBDT NO. 20/2016 DATED 2 6/05/2016. THE MERE FACT THAT THE APPEAL WAS RECEIVED IN THE OFFIC E DOES NOT NECESSARILY MAKES THE APPEAL VALID. EVEN ISSUING OF NOTICE ON T HAT SHALL NOT CHANGE CHARACTER OF THE PAPER APPEAL. THE AR HAS ALSO ARGUED FOR CONDONATION OF DELAY OF 35 DAYS. HOWEVER THE SAME IS REJECTED AS THE APPEAL FILED IS NOT VALID AND IS NON EST. THE ISSUE OF CONDONATION OF DELAY SHALL ARISE, ONLY IF THE APPEAL FILED IS VALID. THEREFORE, THE PAPER APPEAL FILED BY THE APPELLANT VIDE LETTER DATED 19/04/2016 IS DISMISSED, BEING INVALID. HOWEV ER THIS ORDER DOES NOT TAKE AWAY THE RIGHT TO APPEAL, FROM THE APPELLA NT. THE APPELLANT CAN STILL E-FILED HIS APPEAL AND SEEK CONDONATION OF DELAY AS PER LAW. 3 ITA NO. 3384/DEL/2017 RAJENDRA KUMAR JAIN IN THE RESULT THE APPEAL OF THE APPELLANT IS DISMI SSED. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A) . I HAVE CONSIDERED THE SUBMISSION OF THE LD. DR AND PERUSED THE MATER IAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD. IT IS WELL SETTLED THAT NOBODY SHOULD BE CO NDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PERTAM. I, THEREFORE,DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH INACCORDANCE WITH L AW, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25 . 09.20 17.) SD/- (N.K.SAINI) ACCOUNTANT MEMBER DATED : 25 /09/2017 *BINITA* COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 4 ITA NO. 3384/DEL/2017 RAJENDRA KUMAR JAIN DATE INITIAL 1. DRAFT DICTATED ON 18.09.2017 2. DRAFT PLACED BEFORE AUTHOR 18.09.2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 25.09.2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.