Gopi Chand , Noida V. ITO, ward- 1(4), Noida

ITA 3386/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1832 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MEEL
• Assessee Lawyers: PAWAN CHAUHAN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, HON BLE VICE PRESIDENT ITA NO. 3386 /DEL/2018 : ASSTT. YEAR : 2009 - 1 0 GOPI CHAND, C/O M/S P CHAUHAN & COMPANY, 1120, 11 TH FLOOR, TOWER - A, THE I - THUM, PLOT NO. A - 40, SECTOR - 62, NOIDA - 201301 (U.P.) VS INCOME TAX OFFICER, WARD - 2 (4 ) , NOIDA (U.P.) (APPELLANT) (RESPONDENT) PAN NO. A EGPC9552D ASSESSEE BY : SH. PAWAN CHAUHAN , CA REVENUE BY : SH. PRADEEP KUMAR MEEL , SR. DR DATE OF HEARING : 23 . 10 .201 8 DATE OF PRONOUNCEMENT : 06 .1 1 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 28 .03 .2018 OF LD. CIT(A) - 1 , NOIDA . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 1 , NOIDA IN PASSING THE ORDER UNDER SECTION 250 OF THE INCOME TAX ACT, 1961, AGAINST THE ASSESSEE IS UNJUST, ARBITRARY AND DESERVES TO BE QUASHED. 2. THAT HIS ACTION OF NOT PROVIDING PROPER OPPORTUNITY OF BEING HEARD AND DISMISSING THE APPEAL ON THE BASIS THAT NO REPRESENTATION HAS BEEN MADE BY THE ASSESSEE, DESPITE THE FACT THAT AN ADJOURNMENT APPLICATION DATED 26 TH MARCH, 2018 IS AVAILABLE ON RECOR D, IS AGAINST THE CARDINAL PRINCIPAL OF NATURAL JUSTICE AND ACCORDINGLY ORDER DESERVES TO BE QUASHED. ITA NO . 3386 /DEL /201 8 GOPI CHAND 2 3. THAT THE ACTION OF LD. ASSESSING OFFICER IN HOLDING THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICES SERVED ON VARIOUS DATES WERE ABRASIVE AND IS TOT ALLY WRONG AND HIS ACTION IN PASSING THE ORDER UNDER SECTION 147/ 144 OF THE ACT WITHOUT SERVICING THE NOTICE UNDER SECTION 148 OF THE ACT ON THE ASSESSEE IS ILLEGAL, ARBITRARY, VOID - AB - INITIO AND DESERVES TO BE QUASHED. 4. THAT THE ACTION OF LD. ASSESSIN G OFFICER OF PASSING THE ASSESSMENT ORDER UNDER SECTION 147/144 OF THE ACT WITHOUT ASSUMING THE JURISDICTION IN THE ABSENCE OF ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT DESPITE THE FACT THAT ITR WAS FILED DATED 23 RD FEB, 2010 VIDE ACKN. NO. 033101 9626; IS BAD IN LAW AND VOID - AB - INITIO AND THEREFORE THE ASSESSMENT ORDER DESERVES TO BE QUASHED. 5. THAT THE ACTION OF LD. ASSESSING OFFICER IN TREATING THE CASH DEPOSIT IN HIS SAVING BANK ACCOUNT AMOUNTING RS. 16,80,000/ - (RS. SIXTEEN LAKH EIGHTY THOUSA ND ONLY) AS UNEXPLAINED MONEY IN TERMS OF SECTION 69A OF THE ACT IS - UNJUST, ILLOGICAL AND ARBITRARY AND DESERVES TO BE QUASHED. 6. THAT THE ASSESSEE MUST BE PROVIDED PROPER OPPORTUNITY OF BEING HEARD TO PROVIDE ADDITIONAL EVIDENCES IN SUPPORT OF HIS CONTE NTION THAT THE CASH AMOUNTING RS. 16,80,000 / - (RS. SIXTEEN LAKH EIGHTY THOUSAND ONLY) DEPOSITED IN THE BANK ACCOUNT IS FROM GENUINE SOURCE. 7. APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY AND/OR WITHDRAW GROUNDS OF APPEAL UP TO THE DATE OF HEARI NG OF THE APPEAL. 3. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE AO ON THE BASIS OF INFORMATION RECEIVED THAT THE ASSESSEE HAD DEPOSITED CASH OF RS .16,80,000/ - IN HIS SAVING BANK ACCOUNT ITA NO . 3386 /DEL /201 8 GOPI CHAND 3 ISSUED THE NOTICE U/S 148 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). SINCE, THERE WAS NO COMPLIANCE, THE AO PASSED THE ASSESSMENT ORDER EX - PARTE U/S 144 OF THE ACT AND MADE THE ADDIT ION OF RS.16,80,000/ - . 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION BY OBSERVING AS UNDER: 2. THE APPEAL OF THE APPELLANT WAS FIXED FOR HEARING FOR 12.03.2018, A ND AGAIN FOR 26.03.2018. THERE HAS BEEN NO RESPONSE. NEITHER THE APPELLANT HAS ENTERED APPEARANCE NOR ANY REQUEST FOR ADJOURNMENT HAS BEEN RECEIVED. AS THE APPELLANT IS NOT KEEN ON PROSECUTING ITS APPEAL THE SAME IS DISMISSED FOR WANT OF PROSECUTION. THE I MPUGNED ASSESSMENT ORDER STANDS CONFIRMED. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO OPPORTUNITY OF BEING HEARD WAS PROVIDED BY THE LD. CIT(A) AND THAT NO NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE. THEREF ORE, THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 7. IN HIS RIVAL SUBMISSION, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT SINCE THE ASSESSEE DID NOT COMPLY THE NOTICE ISSUED BY THE LD. CIT(A), THERE WAS NO ALTERNATIVE EXCEPT TO DECIDED THE APPEAL OF THE ASSESSEE EX - PARTE. 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX - PARTE BUT NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ITA NO . 3386 /DEL /201 8 GOPI CHAND 4 ALTERAM PARTEM . I , THEREFORE, BY K EEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORD E R P RONOUNCED IN THE COURT ON 06 /11 / 2018 ) SD/ - (N. K. SAINI) VICE PRESIDENT DAT ED : 06 /11 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR