M/s. Krishna Jewellers, New Delhi V. ACIT, New Delhi

ITA 356/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2792 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: SANJAY KWATRAN
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 356/DEL/2017 : ASSTT. YEAR : 2012 - 13 M/S KRISHNA JEWELLERS, SHOP T - 15, 260 8 - 2613, PLOT NO. 252 & 253, GURUDWARA ROAD, KAROL BAGH, NEW DELHI - 110005 VS ASSTT. COMMI SSIONER OF INCOME TAX, CIRCLE - 51( 1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AKFK0671M ASSESSEE BY : SH. SANJAY KWATRAN, CA REVENUE BY : SH. T. VASANTHAN , SR. DR DATE OF HEARING : 2 8 .0 6 .201 7 DATE OF PRONOUNCEMENT : 30 .06 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 16.12 .2016 OF LD. CIT(A) - 17 , NEW DELHI . 2. FOLLOWING GROUND S HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT(A), NEW DELHI (HEREINAFTER REFERRED TO AS CIT(A)), IS BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS NOT JUSTIFIED IN PASSING AN EX - PARTE ORDER. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING ADDITION OF RS. 8 LACS PERTAINING TO UNSECURED LOANS OF RS. 7 LACS (RECEIVED FROM GEETA DUA) A ND RS. 1 ITA NO . 356 /DEL /201 7 KRISHNA JEWELLERS 2 LAC (RECEIVED FROM MANOJ BANSAL) BY HOLDING THESE LOANS AS UNSUBSTANTIATED CASH CREDITS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING 1/10 TH OF THE AD - HOC DISALLOWANCE OUT OF CONVEYAN CE AND TELEPHONE EXPENSES. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING OR EARLIER. 3 . MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL, VIDE GROUND NO. 2 RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A). 4. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 29.09.2012 DECLARING AN INCOME OF RS.26,84,192/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY . THE AO FRAMED THE ASSESSMENT AT AN IN COME OF RS.34,93,930/ - BY MAKING THE ADDITION OF RS. 8,00,000/ - U/S 68 OF THE INCOME TAX ACT, 1961 BY OBSERVING THAT THE ASSESSEE DID NOT PROVE THE IDENTITY AND CAPACITY OF THE CREDITORS AND GENUINENESS OF THE TRANSACTION. ANOTHER ADDITION OF RS.9,741/ - WAS MADE BEING 1/6 TH OF THE CONVEYANCE AND TELEPHONE EXPENSES. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX - PARTE BY STATING THAT THE VARIOUS NOTICES WERE ISSUED BUT NOBODY ATTENDED NOR ANY WRITTEN REPLY W AS FILED. ITA NO . 356 /DEL /201 7 KRISHNA JEWELLERS 3 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE OF HEARING WAS RECEIVED AND THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS BY PASSING THE EX - PARTE ORDER WITHOUT PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER AND STATED THAT THE ASSESSEE WAS NON - COOPERATIVE , AS SUCH THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL EX - PARTE. 8 . I HAVE CONSID ERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX - PARTE. HE SIMPLY STATED THAT THE NOTICES OF HEARING WERE ISSUED ON DIFFE RENT DATES AND T HERE WAS NO COMPLIANCE , HOWEVER, NOTHING IS BROUGHT ON RECORD THAT NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, KEEPING IN V IEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT (A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO . 356 /DEL /201 7 KRISHNA JEWELLERS 4 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (O RDE R PRONOUNCED IN THE COURT ON 30 /06 /2017 ) SD/ - (N. K. AINI) ACCOUNTANT MEMBER DAT ED: 30 /06 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR