Bijendra Singh , Noida V. ITO, ward- 1(2), Noida

ITA 3452/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4238 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S ANANT
• Assessee Lawyers: RAKESH KUMAR SEHGAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3452/DEL/2018 ASSESSMENT YEAR: 2008-09 BIJENDRA SINGH, VS. ITO, WARD 1(2), C/O CA, AKHLINDRA SINGH, NOIDA D-96, SECTOR-56, NOIDA-201301 (UP) (PAN: AXRPS2061D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAKESH KUMAR SEHGAL, CA REVENUE BY : SH. B.S. ANANT, SR. DR. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 30.6.2016 OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS)-I, NOIDA RELEVANT TO ASSESSMENT YEAR 200 8-09. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. NONE OF THE NOTICES FOR FIXATION OF APPEAL WAS RECEIVED BY THE APPELLANT. EVEN THE ASSESSMENT ORDER WAS NOT RE CEIVED AND THEREFORE A CERTIFIED COPY WAS OBTAINED BY THE APPE LLANT FOR FILING APPEAL WITH THE HONBLE TRIBUNAL. IN THE GI VEN CIRCUMSTANCES OF THESE FACTS THE DECISION OF THE CO MMISSIONER EX PARTY AND THAT TOO WITHOUT DETERMINATION OF EACH OF THE GROUNDS OF APPEAL IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND SECTION 250(6) OF THE INCOME TAX ACT, 1961 AND THEREFORE, 2 THE DECISION OF EXPARTE DISMISSAL OF APPEAL BY THE CIT(A) IS UNLAWFUL AND IS LIABLE TO BE SET ASIDE. 2. THE REOPENING OF THE CASE U/S. 147/148 SOLELY ON THE BASIS OF AIR INFORMATION FROM CIT(CIB), KANPUR, THA T CASH OF RS. 16,11,000/- WAS DEPOSITED IN SAVING BANK OF THE APPELLANT, IS CONTRARY TO LAW AND THEREFORE, THE REASSESSMENT INITIATION IS UNLAWFUL AND CONSEQUENTLY THE REASSESSMENT ORDER FR AMED ON THE BASIS OF SUCH UNLAWFUL INITIATION IS ALSO UNLAW FUL AND IS LIABLE TO BE QUASHED. SUBMISSION TO THE HONBLE TRIBUNAL ON THIS GROUND ALTHOUGH THE ABOVE GROUND WAS NOT SPECIFICALLY TAKE N UP IN FORM 35 FILED WITH THE CIT(A) BUT IS COVERED UNDER THE GERNAL GROUND NO.1 HOWEVER, IT IS SUBMITTED THAT THE GRO UND COULD HAVE BEEN FILED WITH CIT(A) AS AN ADDITIONAL GROUND BUT THE ORDER WAS DECIDED EXPARTE. IT IS FURTHER SUBMITTED THAT THE GROUND IS A LEGAL GROUND AND THE APPELLANT IS NOT P RECLUDED FROM RAISING THIS LEGAL ISSUE AT THIS STAGE OF APPE AL IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE C ASE OF NATIONAL THERMAL POWER CO LIMITD VS. CIT (1998) 223 ITR 383. 3. THE ADDITION OF RS. 14,44,859/- AS UNEXPLAINED C ASH DEPOSIT BY THE AO AND DISMISSAL OF THE SAME BY CIT( A) IS CONTRARY TO FACTS AND LAW AND THEREFORE THE ADDITI ON IS LIABLE TO BE DELETED. 3 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY OF THE GROUNDS OF APPEAL. 3. 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 BREVITY. 4. DURING THE HEARING, LD. A.R. OF THE ASSESSEE, HA S STATED THAT AO HAS PASSED THE EXPARTE ORDER U/S. 144/147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) AND SIMILARLY, THE LD. C IT(A) HAS ALSO PASSED THE EXPARTE ORDER AND UPHELD THE ACTION OF THE AO, WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. HE REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO TO DE CIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HEARD. 5. LD. DR DID NOT RAISE ANY OBJECTION TO THE REQUES T OF THE LD. COUNSEL FOR THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMENTS OF THE LD. CO UNSEL OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT VIDE EXPARTE ORDER DATED 03.2.2016 U/S. 147/144 OF THE INCOME TAX ACT AND SIMILARLY, LD. CIT(A) ALSO PASSED THE EXPARTE ORDER DATED 30.6 .2016 AND UPHELD THE ACTION OF THE AO, WITHOUT GIVING SUFFIC IENT OPPORTUNITY TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTIC E, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO WITH TH E DIRECTIONS TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS ALSO 4 DIRECTED TO FILE ALL THE NECESSARY DOCUMENTS/EVIDEN CES, IF ANY, TO SUBSTANTIATE HIS CASE AND FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOUR NMENT. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 01-11-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 01-11-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.