Amrapali Sapphire Developers Pvt. Ltd., Delhi V. JCIT, New Delhi

ITA 3626/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2946 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; TDS

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 3623/DEL/2017 ASSTT. YEAR: 2012-13 ITA NO. 3624/DEL/2017 ASSTT. YEAR : 2012-13 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAICA1193M VS. JCIT RANGE-73 NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 3625/DEL/2017 ASSTT. YEAR : 2012-13 AMRAPALI SAPPHIRE DEVELOPERS PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAHCA6215D VS. ITO(TDS) WARD-49(1) NEW DELHI. (APPELLANT) (RESPONDENT) AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAICA1193M VS. ITO (TDS) WARD-49(1) NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 2 ITA NO. 3626/DEL/2017 ASSTT. YEAR : 2012-13 AMRAPALI SAPPHIRE DEVELOPERS PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAHCA6215D VS. JCIT RANGE-73 NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 3627/DEL/2017 ASSTT. YEAR 2012-13 AMRAPALI PRINCELY ESTATE PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAICA2631A VS. ITO(TDS) WARD-49(1) NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO. 3628/DEL/2017 ASSTT. YEAR 2012-13 AMRAPALI PRINCELY ESTATE PVT. LTD. 307-3 RD FLOOR, NIPUN TOWER, COMMUNITY CENTRE KARKARDOOMA DELHI 110 092 PAN AAICA2631A VS. JCIT RANGE-73 NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 3 O R D E R PER BENCH: THESE SIX APPEALS HAVE BEEN FILED BY THE ABOVE NAMED ASSESSEES AGAINST SEPARATE IMPUGNED ORDERS OF EVEN DATE I.E. 20.2.2017 IN THE CASE OF AMRAPALI ZODIAC DEVELOPERS PVT. LTD. VS. ITO, AMRAPALI SAPPHIRE DEVELOPERS PVT. LTD. VS. ITO, AMRAPALI PRINCELY ESTATE PVT. LTD. VS. ITO AND SEPARATE IMPUGNED ORDERS DATED 21.02.2017 IN THE CASE OF AMRAPALI ZODIAC DEVELOPERS PVT. LTD. VS. JCIT, AMRAPALI SAPPHIRE DEVELOPERS PVT. LTD. VS. JCIT AMRAPALI PRINCELY ESTATE PVT. LTD. VS. JCIT PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 41, NEW DELHI FOR THE ASSESSMENT YEAR 2012-13. 2. THE GROUNDS OF APPEAL OF THE ABOVE APPEALS ARE AS UNDER:- 2.1 ITA NO. 3623/DEL/2017 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. ASSESSEE BY: NONE DEPARTMENT BY : SHRI RAJIV KUMAR , SR. DR DATE OF HEARING 12/03 /20 20 DATE OF PRONOUNCEMENT / /2020 ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 4 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER OF TREATING THE ASSESEE AS AN ASSESSEE IN DEFAULT. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED N CONFIRMING THE ACTION OF ASSESSING OFFICER OF HOLDING THAT THE ASSESEE WAS LIABLE TO DEDUCT TDDS ON PAYMENT OF RS. 1,43,61,361/- 6. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF CREATING DEMAND OF RS. 19,53,145/- (RS. 14,36,136/- ON ACCOUNT OF ALLEGED TDS AND RS. 5,17,009/- ON ACCOUNT OF ALLEGED INTEREST U/S 201(1A) OF THE INCOME TAX ACT, 1961) 7. ON THE FACTS AND CIRCUMSTANCES OF CASE IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGMENTS OF JURISDICTION DELHI HIGH COURT. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2.2 ITA NO. 3624/DEL/2017 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 5 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PENALTY OF RS. 19,53,145/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271C OF THE INCOME TAX ACT 1961. 7. ON THE FACTS AND CIRCUMSTANCES OF CASE IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGMENTS OF JURISDICTION DELHI HIGH COURT. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2.3 ITA NO. 3625/DEL/2017 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER OF TREATING THE ASSESEE AS AN ASSESSEE IN DEFAULT. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED N CONFIRMING THE ACTION OF ASSESSING OFFICER OF HOLDING THAT THE ASSESEE WAS LIABLE TO DEDUCT TDS ON PAYMENT OF RS. 1,91,45,700/- 6. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF CREATING DEMAND OF RS. 26,32,534/- (RS. 19,14,570/- ON ACCOUNT OF ALLEGED TDS AND RS. 7,17,964/- ON ACCOUNT OF ALLEGED INTEREST U/S 201(1A) OF THE INCOME TAX ACT, 1961) 7. ON THE FACTS AND CIRCUMSTANCES OF CASE IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGMENTS OF JURISDICTION DELHI HIGH COURT. ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 6 THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2.4 ITA NO. 3626/DEL/2017 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PENALTY OF RS. 26,32,534/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271C OF THE INCOME TAX ACT, 1961. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGMENT OF JURISDICTION DELHI HIGH COURT. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2.5 ITA NO. 3627/DEL/2017 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 7 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER OF TREATING THE ASSESEE AS AN ASSESSEE IN DEFAULT. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER OF HOLDING THAT THE ASSESEE WAS LIABLE TO DEDUCT TDS ON PAYMENT OF RS. 1,25,23,590/-. 6. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF CREATING DEMAND OF RS. 17,21,993/- (RS. 12,52,359/-) ON ACCOUNT OF ALLEGED TDS AND RS. 4,69,634/- ON ACCOUNT OF ALLEGED INTEREST U/S 201(1A) OF THE INCOME TAX ACT, 1961. 7. ON THE FACTS AND CIRCUMSTANCES OF CASE IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGEMENTS OF JURISDICTION DELHI HIGH COURT. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2.6 ITA NO. 3628/DEL/2017 ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING EXPARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 8 PENALTY OF RS. 17,21,993/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271C OF THE INCOME TAX ACT, 1961. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE JUDGMENTS OF JURISDICTION DELHI HIGH COURT. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER/MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. SINCE ALL THESE APPEALS INVOLVED IDENTICAL ISSUES, THEY WERE TAKEN UP TOGETHER FOR HEARING AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 4. NONE WAS PRESENT ON BEHALF OF THE ASSESSEES/APPELLANTS WHEN THE APPEALS WERE CALLED OUT FOR HEARING. ALSO NO ADJOURNMENT APPLICATION IN ANY OF THE APPEALS WAS RECEIVED. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE PROCEED TO HEAR THESE APPEALS EX PARTE QUA THE ASSESSEES/APPELLANTS. 5. THE LD. SR. DR HAS PLACED RELIANCE ON THE ORDERS OF BOTH THE LOWER AUTHORITIES AND HAS SUBMITTED THAT THE ASSESSEES HAD CHOSEN NOT TO APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO AND, THEREFORE, IT WAS APPARENT THAT THE ASSESSEES HAD NOTHING IN SUBSTANCE TO SUBMIT BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 9 6. WE HAVE HEARD THE LD. SR. DR AND HAVE ALSO PERUSED THE IMPUGNED ORDERS. A PERUSAL OF ALL THE SIX ORDERS OF THE LD. FIRST APPELLATE AUTHORITY IN THE ABOVE CAPTIONED APPEALS WOULD SHOW THAT ALL THESE ORDERS WERE PASSED EX PARTE AS THE ASSESSEES WERE NOT REPRESENTED BEFORE THE LD. FIRST APPELLATE AUTHORITY. IN ALL THE SIX APPEALS THE ASSESSES HAVE CHALLENGED THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN NOT AFFORDING A PROPER OPPORTUNITY TO THE ASSESSEE AND IN PASSING AN EX PARTE ORDER. ALTHOUGH, WE DO NOTE THAT THE ASSESSEES HAVE BEEN MOST CASUAL IN THEIR APPROACH AND WERE NOT PRESENT BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND HAVE ALSO CHOSEN NOT TO BE REPRESENTED BEFORE THIS TRIBUNAL TODAY, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE DEEM IT FIT TO RESTORE THESE APPEALS TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITH THE DIRECTION TO ADJUDICATE THE APPEALS OF THE ASSESSEES ON MERITS AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEES TO PRESENT THEIR CASES. IT IS SO DIRECTED ACCORDINGLY. WE ALSO DIRECT THE ASSESSEES TO COMPLY WITH THE NOTICES ISSUED BY THE OFFICE OF THE LD. FIRST APPELLATE AUTHORITY AND FULLY COOPERATE IN THE FIRST APPELLATE PROCEEDINGS WHEN CALLED UPON TO DO SO FAILING WHICH THE LD. FIRST APPELLATE AUTHORITY SHALL BE AT LIBERTY TO PROCEED EX PARTE QUA THE ITA NOS. 3623,3624,3625,3626,3627,3628/DEL/2017 AMRAPALI ZODIAC DEVELOPERS PVT. LTD. 10 ASSESSEES AND ADJUDICATE THESE APPEALS ON MERITS IN ACCORDANCE WITH LAW. 7. IN THE FINAL RESULT ALL THESE SIX APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MARCH, 2020. SD/- SD/- (R.K. PANDA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12/03/2020 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI