Sh. Rakesh Goel, Haryana V. ITO, Rohtak

ITA 3388/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6767 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: NAVEEN KR. GOEL
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 250

Judgement Text

I.T.A .NO.-3388/DEL/2015 RAKESH GOEL VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-3388/DEL/2015 (ASSESSMENT YEAR-2011-12) RAKESH GOEL, S/O-SH. JALBIR GOEL, C/O-HANUMAN MARBLE, RAM GOPAL COLONY, SONEPAT ROAD, DISTT.-ROHTAK, HARYANA-124001. PAN-AIIPG2157J ( APPELLANT) VS ITO, WARD-3, ROHTAK. (RESPONDENT) ASSESSEE BY SH.NAVEEN KR. GOEL, CA REVENUE BY SH. NEERAJ KUMAR, SR.DR DATE OF HEARING 15 . 11 .2016 DATE OF PRONOUNCEMENT 01 . 0 2 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 22.01.2015 OF CIT(A), ROHTAK PERTAINING TO 20 1112 ASSESSMENT YEAR ON VARIOUS GROUNDS. THE REGISTRY HAS POINTED OUT A DEFECT IN THE PRESENT APPEAL AND THE ASSESSEE WAS REQUIRED TO ADDRESS THE SAME. THE LD.AR RELYING UP ON THE APPLICATION DATED 09.11.2016 FILED IN THE REGISTRY SUBMITTED THAT THERE IS NO DEFECT I N TERMS OF THE DECISION OF THE HONBLE KARNTAKA HIGH COURT IN THE CASE OF RAJKAMAL POLYMERS P.LTD. VS CIT [2007] 158 TAXMAN 1 20 (KARNATAKA). RELYING UPON THE SAID DECISION IT WAS SUBMITTED T HAT THE HONBLE HIGH COURT CONSIDERING THE FACT THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUNDS OF LIMITATION HELD THAT SUCH AN ORDER WOULD FALL UN DER CLAUSE (D) OF SECTION 253(6) OF THE ACT. THE LD.AR RELYING UPON THE SAID DECISION SUBMITTED THAT ACCORDINGLY THERE IS NO DEFECT AS IT IS DEEMED TO BE CURED IN TERMS OF THE FOLLOWING PARAS OF THE SAID DECISION:- 5. ADMITTED FACTS WOULD REVEAL OF SEVERAL ADVERSE ORDERS AT THE HANDS OF ASSESSING AUTHORITY. APPEALS WERE FILED ALONG WITH DELAY APPL ICATION. DELAY WAS NOT CONSIDERED IN EACH ONE OF THE APPEALS. APPEALS STOOD REJECTED ONLY ON THE GROUND OF DELAY. WHEN THOSE ORDERS WERE CHALLENGED BEFORE THE TRIBUN AL, REGISTRAR HAS CHOSEN TO DEMAND A SUM OF RS. 10,000 IN THE LIGHT OF THE ORDE R OF ASSESSING AUTHORITY. THE TRIBUNAL HAS ACCEPTED REGISTRAR'S OBJECTION IN TERM S OF THE IMPUGNED ORDER. 6. SECTION 253(6) OF THE ACT WOULD READ AS UNDER: '(6) AN APPEAL TO THE APPELLATE TRIBUNAL SHALL BE I N THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER AND SHALL, IN THE CASE OF AN APPEAL MADE, ON OR AFTER THE 1 ST DAY OF OCTOBER, 1998, IRRESPECTIVE OF THE DATE OF INITIATION OF THE ASSESSMENT PROCEEDINGS RELATING THERETO, BE ACCOMPA NIED BY A FEE OF, PAGE 2 OF 4 I.T.A .NO.-3388/DEL/2015 RAKESH GOEL VS ITO (A) WHETHER THE TOTAL INCOME OF THE ASSESSEE AS COM PUTED BY THE ASSESSING OFFICER, IN THE CASE TO WHICH THE APPEAL RELATES, IS ONE HUN DRED THOUSAND RUPEES OR LESS, FIVE HUNDRED RUPEES, (B)WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTED AS AFORESAID IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN ONE HUNDRED T HOUSAND RUPEES BUT NOT MORE THAN TWO HUNDRED THOUSAND RUPEES, ONE THOUSAND FIVE HUNDRED RUPEES, (C)WHERE THE TOTAL INCOME OF THE ASSESSEE COMPUTED AS AFORESAID IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN TWO HUNDRED T HOUSAND RUPEES, ONE PER CENT OF THE ASSESSED INCOME, SUBJECT TO A MAXIMUM OF TEN TH OUSAND RUPEES, (D)WHERE THE SUBJECT-MATTER OF AN APPEAL RELATES TO ANY MATTER OTHER THAN THOSE SPECIFIED IN CLAUSES (A), (B) AND (C ), FIVE HUNDRE D RUPEES: PROVIDED THAT NO SUCH FEE SHALL BE PAYABLE IN THE C ASE OF AN APPEAL REFERRED TO IN SUB-SECTION (2) OR A MEMORANDUM OF CROSS OBJECTIONS REFERRED TO IN SUB-SECTION (4).' 7. A CAREFUL READING OF THE SAID SECTION WOULD SHOW THE SCALE OF FEES IS MENTIONED IN THE LIGHT OF ASSESSMENT AT THE HANDS OF ASSESSING A UTHORITY IN TERMS OF THE MONEY PAYABLE BY THE ASSESSEE. SECTION 253(6)(A) OF THE A CT WOULD PROVIDE THAT IF THE TOTAL INCOME AS COMPUTED BY THE ASSESSING OFFICER IS ONE HUNDRED THOUSAND RUPEES, COURT FEE PAYABLE IS FIVE HUNDRED RUPEES. SECTION 2 53(6)(B) WOULD PROVIDE THAT IN THE CASE OF APPEAL INVOLVING MORE THAN ONE HUNDRED THOU SAND RUPEES BUT NOT MORE THAN TWO HUNDRED THOUSAND RUPEES, COURT FEE PAYABLE IS O NE THOUSAND FIVE HUNDRED RUPEES. SECTION 253(6)(C) WOULD PROVIDE THAT IN THE CASE OF APPEAL INVOLVING MORE THAN TWO HUNDRED THOUSAND RUPEES, COURT FEE PAYABLE IS ONE PER CENT OF ASSESSED INCOME SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES. SECTION 253(6)(D) WOULD PROVIDE THAT IN THE EVENT OF SUBJECT-MATTER OF THE APPEAL RELATE TO ANY MATTER OTHER THAN THOSE SPECIFIED IN CLAUSES (A), (B) AND (C) CO URT FEE PAYABLE IS FIVE HUNDRED RUPEES. 8. IN THE CASE ON HAND, IT IS SEEN THAT THE APPELLA TE COMMISSIONER HAS CHOSEN TO REJECT THE APPEAL ON THE GROUND OF LIMITATION. IN O UR VIEW, SUCH AN ORDER WOULD FALL WITHIN CLAUSE (D) OF SECTION 253(6) OF THE ACT. HEN CE, ONLY A SUM OF RS. 500 IS PAYABLE IN TERMS OF SECTION 253(6)(D) OF THE ACT. U NFORTUNATELY, THE TRIBUNAL, WITHOUT EVEN LOOKING INTO THE BASIC REQUIREMENT OF COURT FE E, HAS CHOSEN TO BLINDLY ACCEPT THE OBJECTION OF THE REGISTRAR. IN THE CIRCUMSTANCES, W E ARE SATISFIED THAT THE APPELLANT IS JUSTIFIED IN COMPLAINING THAT ORDER OF THE TRIBUNAL RUNS COUNTER TO SECTION 253(6)(D) OF THE ACT. WE ACCEPT THE SUBMISSION OF APPELLANT-ASSE SSEE. ON THE FACTS AND GIVEN CIRCUMSTANCES, WE DEEM IT PROPER TO HOLD THAT APPEL LANT IS LIABLE TO PAY COURT FEE AT THE RATE OF RS. 500 OF EACH ONE OF THE APPEALS FOR THE PURPOSE OF MAINTAINING APPEALS BEFORE THE TRIBUNAL, THE APPELLANT HAS MADE OVER TH E COURT FEE OF RS. 12,000, SINCE THE APPELLANT IS ONLY LIABLE TO PAY A SUM OF RS. 2, 500 AS COURT FEE, REGISTRAR IS DIRECTED TO REFUND THE BALANCE SUM OF RS. 9,500 TO THE APPELLANT WITHIN ONE MONTH FROM TODAY. ON FAILURE, APPELLANT IS ENTITLED FOR I NTEREST AT THE RATE OF 10 PER CENT P.A. FOR DELAYED PAYMENT FROM THE DATE OF DELAY TILL THE DATE OF PAYMENT. 2. INVITING ATTENTION THE GROUNDS NO.1, 2 & 3 OF TH E APPEAL FILED, IT WAS HIS PRAYER THAT THE IMPUGNED ORDER MAY BE SET ASIDE ON THE GROUNDS OF L ACK OF OPPORTUNITY. REFERRING TO THE RECORD, IT WAS SUBMITTED THAT ON THE THREE OCCASION S I.E 22.12.2014; 05.01.2015; AND 20.01.2015 WHEN THE CASE WAS STATED TO BE LISTED, N O NOTICE FOR THE SPECIFIC DATE OF HEARING WAS RECEIVED BY THE ASSESSEE. THE DISMISSAL OF THE APP EAL BY THE CIT(A) RELYING UPON THE CIT VS MULTIPLAN (INDIA) LTD. 38 ITD (DEL.)320; LATE TUKOJ I RAO HOLKAR VS CWT (1997) 223 ITR 480 (MP) ON THESE FACTS, IT WAS SUBMITTED NOT IN ACCORDANCE WITH LAW . IN THE CIRCUMSTANCES, IT WAS PAGE 3 OF 4 I.T.A .NO.-3388/DEL/2015 RAKESH GOEL VS ITO HIS LIMITED PRAYER THAT THE IMPUG NED ORDER MAY BE SET ASIDE AND T HE OPPORTUNITY OF BEING HEARD MAY BE GRANTED TO THE AS SESSEE. 3. LD. SR.DR CONSIDERING THE PRAYER HAD NO OBJECTIO N IF THE ORDER IS PASSED AFTER HEARING THE ASSESSEE. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD, RELYING UPON THE DECISION OF THE HONBLE KARNATAKA HIGH COU RT IN THE CASE OF RAJKAMAL POLYMERS P.LTD. VS CIT (CITED SUPRA) , I HOLD THAT THE DEFECT POINTED OUT BY THE REGISTR Y IS DEEMED TO BE CURED. ADDRESSING THE ARGUMENTS ON MERIT WHEREIN THE LIMI TED PRAYER OF THE LD.AR WAS THAT THE ISSUE BE REMANDED. I FIND THAT THE DISMISSAL OF THE ASSE SSEES APPEAL IN THE PECULIAR FACTS OF THE PRESENT CASE WHERE NO NOTICE FOR THE SPECIFIC DATE HAD BEEN RECEIVED BY THE ASSESSEE CANNOT BE SAID TO BE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE. APART FROM THIS, IT IS SEEN THAT THE IMPUGN ED ORDER CANNOT STAND IN THE EYES OF LAW AS THE LD. COMMISSIONER (APPEALS), ROHTAK HAS DISMISSED TH E ASSESSEES APPEAL ON THE GROUNDS OF NON-REPRESENTATION AND NOT ON MERITS. SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961, IT IS SEEN REQUIRES THAT THE CIT(A) DISPOSIN G OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION TH EREON AND THE REASON FOR THE DECISION. WHILE DECIDING THE APPEAL, IT IS SEEN THAT THE LD.CIT(A) HAS NOT CARED TO ADHERE TO THE STATUTORY MANDATE. ACCORDINGLY, IN ORDER TO ADDRESS THIS STA TUTORY DEFICIT, THE IMPUGNED ORDER IS SET ASIDE. 4.1. IN THESE CIRCUMSTANCES, ACCEPTING THE ORAL UND ERTAKING OF THE LD.AR THAT THE ASSESSEE SHALL PARTICIPATING IN THE PROCEEDINGS, THE IMPUGNE D ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED TO THE FILE OF THE CIT(A) WITH THE DIRECTI ON TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 O F FEBRUARY 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* PAGE 4 OF 4 I.T.A .NO.-3388/DEL/2015 RAKESH GOEL VS ITO COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI