AMIT SAXENA ( Legal Representative from estate of Sushil Saxena), NEW DELHI V. DCIT, CIRCLE- 22(2), NEW DELHI

ITA 3556/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6706 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAMAND ROAY
• Keywords: Opportunity of being heard; Set aside
• Section: 80IC; 80IC; 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3556/DEL/2019 [ASSESSMENT YEAR: 2013-14] AMIT SAXENA VS. DCIT, CIRCLE 22(2), (LEGAL REPRESENTATIVE FROM NEW DELHI 2 ESTATE OF SUSHIL SAXENA) C-2/261, JANAKPURI, NEW DELHI 110 058 (PAN: AATPS9277N) [APPELLANT] [RESPONDENT] ASSESSEE BY: SHRI RAJESH MAHNA, ADVOCATE & SHRI RAMAND ROAY, ADVOCATE REVENUE BY : SMT. RINKU SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS-XXV], NEW DELHI DATED 27.03.2019 PERTAINING TO ASSESSMENT YEAR 2013-14 O N THE FOLLOWING GROUNDS:- 1. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA D ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL FILED BY LEGAL HEIR ON ACCOUNT OF REDUCED DEDUCTION UNDER SE CTION BOIC OF THE INCOME TAX ACT, 1961. KEEPING IN VIEW T HE FACTS AND CIRCUMSTANCES AND PLAIN READING OF SECTIO N 80IC OF THE INCOME TAX ACT, 1961 THE APPELLANT SHOU LD HAVE BEEN PERMITTED TO CLAIM FULL DEDUCTION UNDER SECTION 8OIC IN RESPECT OF THE INCOME EARNED FROM T HE ELIGIBLE UNIT. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IS COMING TO THE CONCLUSI ON THAT 2 THE APPELLANT CHOSE NOT TO PRESS THE APPEAL DESPITE SEVERAL OPPORTUNITIES CULLED OUT IN THE CHART OF FI XATION DATES WITHOUT APPRECIATING THAT THE APPELLANT HAD M ADE ALL ATTEMPTS AND TAKEN ALL STEPS TO SUBSTITUTES THE NAME OF SH. AMIT SAXENA AS LEGAL HEIR AND FAILED BECAUSE OF TECHNICAL REASONS. 3. THAT THE APPELLANT HAD FULL FILLED ALL CONDITION OF FILING OF APPEAL THROUGH THE LEGAL HEIR SMT. LATA SAXENA BUT SHE ALSO DIED ON 31.03.2017 LEAVING BEHIND SH.AMIT SAXE NA AS LEGAL HEIR. THE APPELLANT SH.AMIT SAXENA MADE AL L ATTEMPTS TO FILE THE APPEAL ELECTRONICALLY BY SUBST ITUTING HIS NAME AND PERMANENT ACCOUNT NO. TO FULL FILLED THE LEGAL REQUIREMENT! PROCEDURAL REQUIREMENT. ND THE COMMISSIONER OF INCOME TAX (APPEALS) INSTEAD OF APPRECIATING THAT APPELLATE PROCEEDING ITSELF COULD NOT BE LEGALLY CARRY ON WITHOUT THE SUBSTITUTE NAME OF SH. AMIT SAXENA AND APPEAL HAD TO BE FILLED ELECTRONICALLY O NCE AGAIN AS PER THE LEGAL PROCEDURAL REQUIREMENT OF CB DT. 4. THAT THE APPELLANT HAD NEVER GOT OPPORTUNITY TO REPRESENT THE CASE AND ORDER PASSED IS WITHOUT PRO VIDING ADEQUATE AND REASONABLE OPPORTUNITIES. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NEITHER CONSIDER REPRESENTATION DATED 04.03.2016 AND 18.12.2017 WITH OTHER INFORMATION PLACED ON RECORD IN FILE OF OFFICE OF THE CIT (A) APART FROM THE GROUND S OF APPEAL TAKEN IN THE APPEAL FILED MANUALLY ON 1B.04. 2016. 5. THAT THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS) IS BAD IN LAW AND ON FACTS OF THE CASE. THE APPELLA NT 3 CRAVES PERMISSION TO ADD, AMEN AND ALTER ANY OF TH E GROUND BEFORE OR ON THE DATE OF HEARING. 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE DRAW MY ATTENTION TOWARDS THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS DECIDED THE ISSUES IN D ISPUTE AGAINST THE ASSESSEE, WITHOUT SERVING THE NOTICE UPON THE A SSESSEE. HE FURTHER STATED THAT SH. SUNIL SAXENA, THE ASSESSEE HAS DIED DURING THE PROCEEDINGS AND HIS WIFE SMT. LATA SAXENA BECOM E LEGAL HEIR BEFORE THE LD. CIT(A). BUT MRS. LATA SAXENA, THE LE GAL HEIR OF THE ASSESSEE HAS ALSO DIED DURING THE PROCEEDINGS AND THEIR SON SH. AMIT SAXENA, HAS BECOME LEGAL REPRESENTATIVE OF TH E ASSESSEE AND FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. HE FURTHER DRAW MY ATTENTION TOWARDS THE ORDER DATED 29.11.2019 PASSED BY THE ITAT, SMC BENCH, NEW DELHI IN ITA NO. 6021/DEL/2017 (AY 2 010-11) & 06 OTHERS APPEALS BY FILING THE COPY THEREOF AND STATE D THAT LD. COUNSEL FOR THE ASSESSEE HAS BROUGHT TO THE NOTICE OF THE BENCH THAT ASSESSEE HAS EXPIRED AND APPEAL BEFORE THE LD. CIT (A) WAS FILED BY THE LEGAL HEIR SMT. LATA SAXENA, THE WIFE OF THE AS SESSEE. HOWEVER, SHE ALSO EXPIRED DURING THE APPELLATE PROCEEDINGS. THE LD. AR OF THE ASSESSEE ALSO POINTED OUT THAT AN APPLICATION WAS FILED BEFORE THE LD. CIT(A) TO BRING ON RECORD SH. AMIT SAXENA, THE SON OF THE ASSESSEE AS LEGAL REPRESENTATIVE OF THE ASSESSEE. IN VIEW OF ABOVE, HE SUBMITTED THAT TRIBUNAL SHOULD DECIDE TH E ISSUES IN DISPUTE AFTER HEARING BOTH THE PARTIES, BUT THE TR IBUNAL VIDE ORDER DATED 29.11.2019 REMITTED THE APPEAL BACK THE ISSUE S IN DISPUTE TO LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE ISSUES IN DISPUTE AFTER TAKING ON RECORD THE LEGAL HEIR AND AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE , HE REQUESTED 4 THAT THE ISSUES IN DISPUTE MAY BE DECIDED ON MERIT BY THIS TRIBUNAL NOT SET ASIDE THE SAME, AS DONE BY THE TRIBUNAL V IDE ITS ORDER DATED 29.11.2019, AS AFORESAID. 3. LD. DR RELIED UPON THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND STATED THAT ASSESSEE DID NOT APPEAR BEF ORE THE LD. CIT(A) INSPITE OF 13 OPPORTUNITIES GIVEN BY THE LD. CIT(A). THEREFORE, THE ISSUES IN DISPUTE MAY BE SET ASIDE T O THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF THE REVENUE AUTHORITIES INCLUDING THE COMMON ORDER PASS ED IN BUNCH OF APPEALS BY THE ITAT, SMC BENCH, NEW DELHI IN ITA N O. 6021/DEL/2017 (AY 2010-11) & 06 OTHERS IN THE CASE OF M/S RICHMOND EDUCATIONAL SOCIETY VS. JCIT, RANGE-1, NO IDA & OTHERS (IN WHICH SH. AMIT SAXENA WAS THE RESPONDENT IN ITA NO. 6058/DEL/2017) (AY 2011-12)), ESPECIALLY THE PARAGR APH NO. 9 AT PAGE NO. 7 OF THE TRIBUNALS ORDER DATED 29.11.2019 AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE. I HAVE ALSO PE RUSED THE IMPUGNED ORDER, AND I AM OF THE VIEW THAT ASSESSEE REMAINED NON- COOPERATIVE BEFORE THE LD. CIT(A) FOR 13 TIMES AND THE LD. CIT(A) LASTLY DECIDED THE ISSUES IN DISPUTE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, I AM OF THE VIEW THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A). THEREFORE, I HAVE TO RESPECTFULLY FOLLOW THE AFORE SAID RATIO AND HENCE, SETTING ASIDE THE ISSUES IN DISPUTE TO THE F ILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME, AS P ER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. IN COMPLIANCE OF THE ORDER, LD. CIT(A) MAY BRING ON R ECORD SH. AMIT SAXENA AS LEGAL REPRESENTATIVE OF THE ASSESSEE AND DECIDE THE 5 APPEAL BY PASSING THE SPEAKING ORDER. IN VIEW OF THE NON- COOPERATION OF THE ASSESSEE BEFORE THE LD. CIT(A) A ND IN THE INTEREST OF JUSTICE, I AM ALSO DIRECTING THE ASSESS EE THROUGH HIS COUNSEL TO APPEAR BEFORE THE LD. LD. CIT(A) ON 21.04.2020 AT 10.00 AM FOR HEARING. IT IS MADE CLEAR THAT THERE IS NO NEE D TO ISSUE THE NOTICE FOR 21.04.2020, BECAUSE THIS ORDE R HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 06.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:06-02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI