Bajrang Lal Sarda, V. ACIT, New Delhi

ITA 350/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7873 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NO.-349 & 3 50/DEL/2016 (ASSESSMENT YEAR-2011-12) BAJRANG LAL SARDA, C/O-V.DAMANI & CO., CA, C-1 TO 3, KHAJANCHI MARKET, KEM ROAD, BIKANER. PAN-AKYPS8212J (APPELLANT) VS ACIT, CENTRAL CIRCLE-12, NEW DELHI (RESPONDENT) A SSESSEE BY NONE R EVENUE BY SH. K.K.JAISWAL, DR ORDER PER DIVA SINGH, JM BOTH THESE APPEALS ARE BEING DECIDED BY A COMMON O RDER FOR THE SAKE OF CONVENIENCE AS FACTS AND CIRCUMSTANCES REMAIN IDENT ICAL. THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAILING THE SEPAR ATE ORDERS DATED 04.11.2015 OF CIT(A)-23, NEW DELHI PERTAINING TO 201112 ASSESSME NT YEAR WHEREIN THE PENALTIES IMPOSED UNDER SECTION 271(1)(B) AND 271(1 )(C) HAVE BEEN UPHELD. THE GROUNDS RAISED IN BOTH APPEALS ARE IDENTICAL. FOR READY REFERENCE, GROUNDS IN ITA NO.349/DEL/2016 ARE REPRODUCED HEREUNDER:- 1. THE ORDER PASSED BY LD. CIT(APPEALS) IS BAD IN LAW AS WELL AS ON FACTS. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE HONB LE CIT(A)-23, NEW DELHI HAS ERRED IN EX-PARTE CONFIRMING PENALTY ORDER DT. DATE OF HEARING 16.03.2016 DATE OF PRONOUNCEMENT 03.05.2016 I.T.A .NO.-349 & 350/DEL/2016 PAGE 2 OF 4 29.09.2014 FOR RS.10,000/- PASSED U/S 271(1)(B) OF THE I.T.ACT BY THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-12 , NEW DELHI. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE CIT(A )-23, NEW DELHI HAS ERRED IN IGNORING THE ADJOURNMENT REQUEST OF TH E APPELLANT LEGAL COUNSEL DUE TO HIS ILL HEALTH. CIT(A) NOT ONLY IGN ORED THE APPELLANT REQUEST BUT ALSO FAILED TO CONSIDER THE DOCTOR CERT IFICATE ENCLOSED WITH THE LETTER. WORTHY CIT(A) EVEN DIDNT PASS THE SPE AKING ORDER COVERING THE GROUNDS OF APPEAL RAISED BY THE APPELL ANT AND APPRECIATION OF MATERIAL AVAILABLE ON RECORD. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE HONB LE CIT(A) HAS ERRED IN CONFIRMING PENALTY ORDER IGNORING THE FACT S THAT NOTICE FOR ASSESSMENT PROCEEDINGS HAVE NOT BEEN DULY SERVED ON THE APPELLANT DUE TO CHANGE OF ADDRESS OF THE APPELLANT FOR HIS I LL HEALTH. 5. THE APPELLANT CRAVES LEAVE ADD TO OR AMEND ANY GROU ND OF APPEAL AT ANY TIME. 2. NO ONE WAS PRESENT ON BEHALF THE ASSESSEE AT THE TIME OF HEARING. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT BEFORE THE CIT(A) ALSO THE ASSESSEE REMAIN UNREPRESENTED. THE RECORD SHOWS THAT THE LD. CIT(A) GAVE THREE OPPORTUNITIES THEREAFTER THE APPEAL WAS TRANSFERRED BY AN ADMINIS TRATIVE ORDER TO THE PRESENT CIT(A) WHO PASSED THE ORDER AFTER GIVING 2 OPPORTUN ITIES. THE ASSESSEE CONSISTENTLY MOVED ADJOURNMENTS HOWEVER, EFFECTIVE COMPLIANCE DE SPITE OPPORTUNITY WAS NOT MADE LEADING TO THE CIRCUMSTANCE WHERE BOTH THE APP EALS WERE DISMISSED HOLDING AS UNDER:- 3.3. UNDER THESE CIRCUMSTANCES IT IS APPARENT THAT THE APPELLANT IS NOT INTERESTED IN PURSUING ITS APPEAL. THE APPEAL IS T HEREFORE DISMISSED. 3. THE ASSESSEE IS STILL AGGRIEVED. ON CONSIDERING THE IMPUGNED ORDER, WE FIND THAT THE AFORESAID DECISION OF THE LD.CIT(A) IS NOT IN ACCORDANCE WITH THE STATUTORY MANDATE OF SECTION 250(6) WHICH MANDATES THAT THE C IT(A) SHALL PASS A SPEAKING ORDER, THE SPECIFIC SUB-SECTION IS REPRODUCED HEREU NDER FOR READY-REFERENCE:- 250. (1) . (2) I.T.A .NO.-349 & 350/DEL/2016 PAGE 3 OF 4 (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETER MINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A)............................................... .................... 4. THE SPECIFIC PROVISION REQUIRES THE FIRST APPE LLATE AUTHORITY TO SET OUT POINTS FOR DETERMINATION AND THE DECISION THEREON SUPPORTED BY REASONS FOR ARRIVING AT A CONCLUSION. THE SAID MANDATORY EXERC ISE IN THE AFORESAID PROVISION IN THE PECULIAR FACTS OF THE PRESENT CASE IS FOUND TO BE NOT FULFILLED. ACCORDINGLY HOLDING THE IMPUGNED ORDER VIOLATIVE OF THE STATUTO RY MANDATE THEY ARE SET ASIDE BACK TO THE FILE OF THE CIT(A) TO MAKE GOOD THE STA TUTORY DEFICIT. NEEDLESS TO SAY THAT BEFORE PASSING THE ORDER, A REASONABLE OPPORTU NITY SHALL BE PROVIDED TO THE ASSESSEE. WHILE SO DIRECTING IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AND IS UTILIZED IN GOOD FAIT H AS FAILING WHICH THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACC ORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 O F MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:03/05/2016 *AMIT KUMAR* I.T.A .NO.-349 & 350/DEL/2016 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSI STANT REGISTRAR ITAT NEW DELHI