Apexx Texpro (P) Ltd., New Delhi V. ITO, New Delhi

ITA 3549/DEL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74255 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G H SEMA
• Assessee Lawyers: V K JAIN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NO. 3549/DEL/2011 ASSTT. YR: 2007-08 APEX TEXPRO (P) LTD., VS. INCOME-TAX OFFICER, B-2, NAV SHAKTI APARTMENTS, COY. WARD 2(1), NEW D ELHI. M.G. ROAD, GHITORNI, NEW DELHI. C/O M/S O.P. BAGLA & CO., 8/12, KALKAJI EXTENSION, NEW DELHI. PAN: AAFCA 7269 K ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI V.K. JAIN CA RESPONDENT BY : SHRI G.H. SEMA SR. DR O R D E R PER R.P. TOLANI, J.M: : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF CI T(A)-V, NEW DELHI DATED 3-2-2011 RELATING TO A.Y. 2007-08. 2. THE ASSESSEE HAS VARIOUS GROUNDS TO CHALLENGE TH E ORDER OF THE LEARNED CIT(APPEALS). GROUND NO. 2(A) RAISED BY THE ASSESSE E IS AS UNDER: THAT THE LD. CIT(A) HAS PASSED THE ORDER EX-PARTE WHEN NO NOTICE DATED 25-11-10 & 19-01-11 FIXING THE APPEAL FOR 21-12- 10, 14=-01-11 & 02-02-11 WERE RECEIVED BY THE APPEL LANT COMPANY. THE COMPANY HAS DISCONTINUED ALL ITS OPERA TIONS IN GURGAON/ DELHI AND ALL MANUFACTURING LOCATIONS OFFI CES AND GODOWNS HAVE BEEN VACATED AND THEREFORE AS NO NOTIC E FIXING THE APPEAL WAS RECEIVED BY THE APPELLANT COMPANY, T HEREFORE THE QUESTION OF COMPLIANCE THEREOF DOES NOT ARISE. 2 3. IN THIS CASE THE CIT(A) PROCEEDED TO DISPOSE OF THE APPEAL EX PARTE, QUA THE ASSESSEE, BY OBSERVING AS UNDER: I HAVE CONSIDERED THE GROUNDS OF APPEAL TAKEN BY T HE APPELLANT AND ALSO CONSIDERED THE NON COOPERATION O N THE PART OF THE APPELLANT. IT APPEARS THAT THE ASSESSEE IS N OT INTEREST IN HAVING HIS APPEAL DECIDED. THE APPEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED FOR NON-PROSECUTION AND ALSO ON MERITS AS THE APPELLANT HAS NOT FILED ANY WRITTEN SUBMISSIONS ALONG WITH DOCUMENTARY EVIDENCES REGARDING HIS CLAIM. I FIND S UPPORT FROM THE DECISION IN THE CASE OF CIT V/S B.N. BHATTACHAR JEE (1977), REPORTED IN 118 ITR 461 (SC) [RELEVANT PAGES 477 AN D 478] WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEA L BUT ACTIVELY PURSUING IT. THE DELHI TRIBUNAL IN CIT VS. MULTIPLAN INDIA (P) L TD. AS REPORTED IN 38 ITD 320 (DELHI) WHEN FACED WITH A SI MILAR SITUATION OF NON PROSECUTION OF APPEAL DISMISSED TH E APPEAL OF THE REVENUE. IN THE GIVEN CIRCUMSTANCES, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED FOR NON PROSECUTION AND ALSO NON AVAILABI LITY OF ANY SUBMISSIONS ALONG WITH EVIDENCES IN SUPPORT OF GROU NDS TAKEN BY HIM. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT NO NO TICE FIXING THE APPEAL FOR HEARING AS MENTIONED BY LD. CIT(A) IN HIS ORDE R WAS EVER RECEIVED BY THE ASSESSEE, THEREFORE, NO FAULT CAN BE ATTRIBUTED ON THE PART OF ASSESSEE FOR NON APPEARANCE AT THE HEARINGS BEFORE THE CIT(A). L D. COUNSEL ALSO SUBMITTED THAT CIT(A) DISMISSED THE ASSESSEES APPE AL EX PARTE, FOR NON PROSECUTION QUA THE ASSESSEE, WITHOUT ASSIGNING ANY REASON. ACCORDING TO HIM, THE ORDER PASSED BY THE CIT(A) BEING A NON-SP EAKING ORDER, CANNOT STAND IN THE EYE OF LAW. HE PRAYED THAT THE ORDER O F CIT(A) MAY BE SET ASIDE WITH A DIRECTION TO HIM TO DECIDE THE GROUNDS OF AP PEAL TAKEN BEFORE HIM, ON MERIT BY PASSING A REASONED ORDER, AFTER HEARING TH E ASSESSEE. 3 5. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF CIT(A). 6. AFTER GOING THROUGH THE ORDER OF LEARNED CIT(A) WE FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. THE CIT(A) HAS SIMPLY DISMISSED THE APPEAL FOR NON PROSECUTION QUA THE A SSESSEE, WITHOUT ASSIGNING ANY REASON. THE ORDER OF THE LEARNED CIT( A) BEING A NON-SPEAKING ORDER, THE SAME IS SET ASIDE AND THE MATTER IS REST ORED BACK TO HIS FILE WITH THE DIRECTION TO PASS A REASONED ORDER IN ACCORDANC E WITH LAW, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE ORDER ACCORDINGLY. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 04-03-2014. SD/- SD/- ( SHAMIM YAHYA) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04-03-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR