Harvinder Singh, New Delhi V. ITO, New Delhi

ITA 3581/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65476 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 06-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Non compliance
• Section: 142(1)

Judgement Text

ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.3581/DEL/2012 ASSESSMENT YEAR : 2007-08 SHRI HARVINDER SINGH, VS INCOME TAX OFFICER, A-53, SHAHIPUR VILLAGE, WARD 19( 1), SHALIMAR BAGH, VIK AS BHAWAN, NEW DELHI-110088 NEW DE LHI. (PAN: AETPK5020R) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI R.S. SINGHVI RESPONDENT BY : SHRI SATPAL SINGH, SR. DR O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER DATED 24.04.2012 OF THE COMMISSIONER OF INCOME TAX(A)-XI, NEW DELHI FOR AY 2007-08 BY WHICH THE COMMISSIONER OF INCOME TAX(A) DISMISSED THE APPEAL OF THE ASSESSEE CONFIRMING THE ASSESSMENT OR DER. 2. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER: - 1(I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING E X PARTE ORDER WITHOUT PROPER AND VALID SERVICE OF NOTICE. (II) THAT VARIOUS NOTICES REFERRED TO BY COMMISSIO NER OF INCOME TAX(A) WERE NOT SERVED ON THE APPELLANT AND AS ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 2 SUCH THE APPELLANT WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN NON COMPLIANCE OF HEARING AND E X PARTE ORDER IS ARBITRARY AND AGAINST PRINCIPLE OF N ATURAL JUSTICE. (III) THAT EVEN OTHERWISE, APPELLATE ORDER IS NOT IN ACCORDANCE WITH PROVISIONS OF SEC. 250(6) AND AS SU CH ORDER MAY BE RESTORED TO THE COMMISSIONER OF INCOME TAX(A) FOR ADJUDICATION ON MERITS AFTER REASONABLE AND PROPER OPPORTUNITY. 2. THAT ADDITION OF RS.18,30,897/- U/S 68 OF THE I NCOME TAX ACT IS WITHOUT PROPER APPRECIATION OF FACTS AND APPLICATION OF MIND AND AS SUCH THE SAID ADDITION I S NOT SUSTAINABLE ON FACTS AND UNDER THE LAW. 3. THAT ADDITION IN RESPECT OF LOW DRAWINGS AMOUNT ING TO RS.25,000/0 IS ALSO NOT SUSTAINABLE ON FACTS AND UN DER THE LAW. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED A RETURN DECLARING INCOME OF RS.85,000 AND THE SAME WAS PROC ESSED U/S 143(1) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT). SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICE S U/S 143(2) AND U/S 142(1) OF THE ACT WERE ISSUED AND AS NOTED BY THE ASSESSIN G OFFICER, THESE NOTICES REMAINED UNCOMPLIED AND UNATTENDED. PASSING THROUG H SEVERAL DATES OF HEARING, THE CASE WAS FIXED FOR 14.12.2009 BUT NEIT HER THE ASSESSEE NOR HIS REPRESENTATIVE ATTENDED THE PROCEEDINGS AND THE ASS ESSEE FAILED TO FURNISH REQUIRED DETAILS AS PER QUESTIONNAIRE AND SHOW CAUS E NOTICE. THUS, ASSESSING OFFICER TOOK THE VIEW THAT SINCE THE ASSE SSMENT WAS GETTING BARRED ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 3 BY LIMITATION ON 31.12.2009, HE HAD NO ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT PROCEEDINGS EX PARTE TO THE BEST OF HIS JUDGMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4. THE ASSESSING OFFICER FINALIZED THE ASSESSMENT W ITH ADDITIONS OF RS.18,84,800/- U/S 68 OF THE ACT AND RS.25,000 ON A CCOUNT OF LOW DRAWINGS BY THE ASSESSING OFFICER. THE AGGRIEVED ASSESSEE FI LED AN APPEAL BEFORE COMMISSIONER OF INCOME TAX(A) WHICH WAS DISMISSED W ITH THE FINDINGS THAT THERE IS CREDIT IN THE ACCOUNT OF THE APPELLANT AND THE APPELLANT HAS OFFERED NO EXPLANATION ABOUT THE IDENTITY OF THE CREDITORS, TH EIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION, IN VIEW THEREOF, TH ERE REMAINS NO DOUBT THAT IT IS AN UNEXPLAINED DEPOSIT AND HE ALSO HELD THAT THE DRAWINGS SHOWN BY THE APPELLANT ARE NOT SUFFICIENT, THEREFORE, ADDITION O N ACCOUNT OF LOW DRAWINGS WAS ALSO CONFIRMED. HENCE, THIS APPEAL BY THE ASSE SSEE BEFORE THIS TRIBUNAL. 5. WE HAVE HEARD ARGUMENTS OF BOTH THE PARTIES IN T HE LIGHT OF MATERIAL AND DOCUMENTS ON RECORD BEFORE US. THE ASSESSEES REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER NOTED THAT SEVERAL NOTIC ES WERE ISSUED TO THE ASSESSEE BUT THESE WERE NOT DULY SERVED ON THE ASSE SSEE. THEREFORE, THE ASSESSMENT ORDER HAS BEEN PASSED EX PARTE ON THE BA SIS OF BEST JUDGMENT PRINCIPLE AND MATERIAL AVAILABLE ON RECORD. CONSEQ UENTLY, THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD. HE FURTHE R SUBMITTED THAT IN THE ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 4 SAME WAY, THE LD. COMMISSIONER OF INCOME TAX(A) ALS O ISSUED SEVERAL NOTICES TO THE ASSESSEE BUT THESE WERE NOT DULY SER VED ON THE ASSESSEE AND THE APPEAL OF THE ASSESSEE WAS DISMISSED EX PARTE WITHO UT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AR SUBMITTED THA T THE AUTHORITIES BELOW DISCHARGED THEIR FUNCTION VIOLATING THE PRINCIPLES OF NATURAL JUSTICE AND THE ASSESSEE IS STILL WILLING TO SUBMIT REQUIRED DETAIL S AND EVIDENCE AS PER REQUIREMENT OF THE AUTHORITIES BELOW. THEREFORE, T HE ASSESSEE MAY BE GIVEN AN OPPORTUNITY OF BEING HEARD AND THE MATTER MAY KI NDLY BE RESTORED EITHER TO THE FILE OF THE ASSESSING OFFICER OR TO THE FILE OF COMMISSIONER OF INCOME TAX(A) ADHERING TO THE PRINCIPLES OF NATURAL JUSTIC E. 6. THE LD. DR REPLIED THAT THE ASSESSEES CONDUCT W AS NOT COOPERATIVE BEFORE THE AUTHORITIES BELOW. THEREFORE, THE ASSES SMENT ORDER AND THE IMPUGNED ORDER WERE PASSED EX PARTE. HE SUPPORTED THE IMPUGNED ORDERS AND ALTERNATIVELY REQUESTED THAT IF IT IS FOUND NEC ESSARY TO PROVIDE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THEN HE HAS NO SERIOUS OBJECTION TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING O FFICER. 7. ON CAREFUL CONSIDERATION OF SUBMISSIONS AND IMPU GNED ORDER, IN THE LIGHT OF FACTS AND CIRCUMSTANCES OF THE CASE, WE OB SERVE THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOTED AS BE LOW:- 4. IN VIEW OF THE ABOVE, IT IS CLEAR THAT DESPIT E AFFORDING AMPLE OPPORTUNITIES OF BEING HEARD BY ISS UE OF ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 5 STATUTORY NOTICES FROM TIME TO TIME AND SHOW CAUSE NOTICE, THE ASSESSEE FAILED TO COMPLY WITH THE SAID NOTICES AND FAILED TO FURNISH THE REQUISITE DETAILS/INFORMATION/DOCUMENTARY EVIDENCES EVEN A SH OW CAUSE NOTICE DATED 4.12.2009 ISSUED FOR 14.12.2009 WAS ALSO REMAINED UNCOMPLIED WITH. UNDER THESE CIRCUMSTANCES, SINCE THE ASSESSMENT IS GETTING BARR ED BY LIMITATION ON 31.12.2009, I AM LEFT WITH NO ALTERNA TIVE BUT TO COMPLETE THE ASSESSMENT PROCEEDINGS EX PARTE TO THE BEST OF MY JUDGMENT AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 8. WE ALSO OBSERVE THAT IN THE IMPUGNED ORDER, THE COMMISSIONER OF INCOME TAX(A) NOTED AS UNDER:- NOTICES WERE ISSUED TO THE APPELLANT TO ATTEND BEF ORE THE APPELLATE AUTHORITIES AS PER DETAILS GIVEN BELOW BY THE ASSESSING OFFICER ON THE ADDRESS GIVEN IN THE APPEA L MEMO WHICH IS A-53, SHAHPUR VILLAGE, SHALIMAR BAGH, DELHI-110088:- S,NO. NOTICE DATE HEARING DATE REMARKS 1. 23.01.12 10.2.12 RETURNED BACK 2. 13.2.12 22.2.12 NONE ATTENDED 3. 23.2.12 2.3.12 NONE ATTENDED 4. 5.3.12 13.3.12 NONE ATTENDED 5. 27.3.12 17.4.12 NONE ATTENDED THE LAST NOTICE WAS ISSUED ON 5.3.12 FOR HEARING ON 13.3.12 TO THE APPELLANT. HOWEVER, THERE WAS NO COMPLIANCE BY THE APPELLANT. NO ONE ATTENDED NOR W AS ANY ADJOURNMENT LETTER FILED. IN VIEW OF THE ABOVE , I AM FINALIZING THE CASE ON THE BASIS OF WHATEVER MATERI AL IS AVAILABLE ON RECORD EX PARTE. 9. BOTH THE AUTHORITIES BELOW NOTED THAT THE NOTICE S WERE ISSUED TO THE ASSESSEE BUT HE DID NOT COMPLY WITH THE SAME BUT TH ERE IS NO DEFINITE FINDING ITA NO.3581/DEL/2012 ASSTT. YEAR: 2007-08 6 THAT THESE NOTICES WERE DULY SERVED ON THE ASSESSEE . THEREFORE, WE ARE INCLINED TO HOLD THAT THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD BY THE AUTHORITIES BELOW AND IT IS A GROSS VI OLATION OF PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, WE FIND IT JUST AND PROPER TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTI ON THAT HE WOULD DECIDE THE MATTER AFRESH DE NOVO AFTER GIVING AN OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THE ASSESSEE APPELLANT IS DIRECTED TO AT TEND AND SUPPORT THE PROCEEDINGS FAILING WHICH HE WOULD FACE THE CONSEQU ENCES AS PER ACT AND RULES MADE THEREUNDER. 10. IN VIEW OF ABOVE, THE ASSESSEES APPEAL IS DISP OSED OF AND IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.9.2012. SD/- SD/- (G.D. AGRAWAL) (CHANDRA MOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 21ST SEPTEMBER, 2012 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR