SNS Projects Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 3463/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6586 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM IT A NO. 3463 /DEL/201 5 : ASSTT. YEAR : 2008 - 09 SNS PROJECTS PVT. LTD., 1545/29, NAIWALA, KAROL BAGH, NEW DELHI - 110005 VS INCOME TAX OFFICER, WARD - 7(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A LCS6704M ASSESSEE BY : SH. C. S. ANAND , ADV. REVENUE BY : SH. S. S. RANA, CIT DR DATE OF HEARING : 26 .0 7 .201 8 DATE OF PRONOUNCE MENT : 27 .07 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.03.2015 OF LD. CIT(A) - 8 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. (A) THAT THE HON'BLE CIT APPEAL HAS ERRED IN PASSING EX - PARTY ORDER WITHOUT CONSIDERING THE REASONS AND FACTS PRODUCED DURING THE APPELLANT PROCEEDING. (B) THAT THE ORDER OF HON'BLE CIT APP EAL IS BAD IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE. (C) THAT THE HON'BLE CIT APPEAL HAS ERRED IN CONFIRMING THE REOPENING U/S 148, WHEREAS ALL THE FACTS DETAILS, ETC. WERE PRODUCED BEFORE THE LD. ASSESSING OFFICER AND HON'BLE CIT APPEAL. (D) THAT LD. AO HAS ERRED IN NOT PROVIDING OPPORTUNITY TO CROSS EXAMINE THE COMPLAINANT ON THE BASIS OF WHICH SUCH ADDITION HAS BEEN MADE. ITA NO . 3463 /DE L/201 5 SNS PROJECTS PVT. LTD. 2 2. THAT THE HON'BLE CIT APPEAL HAS ERRED IN CONFIRMING AN ADDITION OF RS.82,38,000/ - AS ALL THE DOCUMENTS, DETAILS , HAS BEEN PRODUCED BEFORE THE LD. AO AND HON'BLE CIT APPEAL. 3. THAT THE HON'BLE CIT APPEAL HAS ERRED IN CONFIRMING AN ADDITION OF RS.6,44,816/ - AS ALL THE DOCUMENTS, DETAILS, HAS BEEN PRODUCED BEFORE THE LD. AO AND HON'BLE CIT APPEAL. 4. THAT THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT PRAYS FOR LEAVE TO ADD, ALTER, MODIFY AND WITHDRAW ANY OF THE GROUNDS EITHER BEFORE OR AT THE TIME OF HEARING. 3. FROM THE AFORESAID GROUNDS, IT IS NOTICED THAT VIDE GROUND N OS. 1(A), (B) & (D), THE GRIEVANCE OF THE ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING OPPORTUNITY. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 23.02.2009 DECLARING A LOSS OF RS.23 ,827/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THEREAFTER, THE AO RECEIVED A TEP FROM DIT(INVESTIGATION) AND ON THAT BASIS ISSUED A NOTICE U/S 148 OF THE ACT TO THE ASSESSEE. IN RESPONSE, THE ASSESSE E STATED THAT THE ITR HAD ALREADY BEEN FILED ON 23.02.2009 , THE SAME MAY BE TREATED TO HAVE BEEN FILED IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT. THEREFORE, T HE AO FRAMED THE ASSESSMENT U/S 143(3) OF THE ACT BY MAKING THE ADDITIONS OF RS.86,82,816/ - U/S 68 OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE EX - PARTE ORDER BY OBSERVING THAT ON THE ITA NO . 3463 /DE L/201 5 SNS PROJECTS PVT. LTD. 3 DI FFERENT DATES FIXED FOR HEARING, T HE ASSESSEE FILED THE ADJOURNMENT APPLICATIONS AND THE LAST WAS DATED 11.03.210 5 WHICH WAS REJECTED. THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE IN LIMINE. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX - PARTE WITHOUT PROVIDING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE AND EVEN DID NOT DECIDE THE ISSUES ON MERIT. IT WAS FURTHER SUBMITTED THAT THE LD. COUNSEL FOR THE ASSESSEE SH. J. K. HNADA WAS SUFFERING FROM HEALTH PROBLEM S SINCE SEPTEMBER, 2014 AND HAD BEEN ON - AND - OFF THE WORK. IT WAS F URTHER SUBMITTED THAT DUE TO MEDICAL CONDITION S , THE LD. COUNSEL FO R THE ASSESSEE HAD NOT BEEN IN A PERFECT MENTAL AND PHYS ICAL HEALTH TO ATTEND TO THE WORK, THEREFORE, SOUGHT THE ADJOURNMENT. IN SUPPORT OF THE ABOVE , LETTER DATED 17.04.2015 WRITTEN TO THE PR. COMMISSIONER OF INCOME - TAX (OSD) (APPEALS) - 8, NEW DELHI ALONGWITH VARIOUS MEDICAL REPORT S WERE FURNISHED WHICH ARE PLACED ON RECORD. 7 . IN HIS RIVAL SUBMISSIONS, THE LD. CIT DR SUPPORTED THE ORDER OF THE LD. CIT(A) AND FURTHER SUBMITTED THAT WHENEVE R THE CASE WAS FIXED FOR HEARING, THE ASSESSEE DID NOT APPEAR BEFORE TH E LD. CIT(A). THEREFORE, THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL OF THE ASSESSEE EX - PARTE. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERI AL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX - ITA NO . 3463 /DE L/201 5 SNS PROJECTS PVT. LTD. 4 PARTE EVEN WHEN AN APPLICATION FOR ADJOURNMENT WAS FURNISHED BY THE ASSESSEE. THE LD. CIT(A) ALTHOUGH REJECTED THE APPLICATION FOR ADJ OURNMENT BUT HE HAD NOT GIVEN ANY COGENT REASON FOR THE SAME. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE THEN COUNSEL FOR THE ASSESSEE WAS SUFFERING FROM HEALTH PROBLEMS, THEREFORE, COULD NOT APPEAR ON THE DATE OF HEARING AND THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUES ON MERIT. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE , THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE T HIS 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, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ( ORD ER PRON OUNCED IN THE COURT ON 27 /0 7 / 201 8 ) SD/ - SD/ - ( SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 /07 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . C IT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR