Shri Kewal Lakhera, Ghaziabad V. ITO, Ghaziabad

ITA 3682/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4501 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: ANOOP SHARMA SANJAY PARASHAR
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R.K.PANDA, ACCOUNTANT M EMBER ITA NO. 3682, 3683/DEL/2017 ASSTT. YEAR : 2012-13 KEWAL LAKHERA HOUSE NO. 130, GYAN KHAND-IV, INDIRA PURAM GHAZIABAD VS ITO WARD-1(3) GHAZIABAD (APPELLANT) (RESPONDENT) PAN NO. ABWPL3403B ASSESSEE BY : SH. ANOOP SHARMA, SANJAY PARASHAR, AD V. REVENUE BY : SH. T.VASANTHAN, SR. DR DATE OF HEARING : 28.09.2017 DATE OF PRONOUNCEMEN T : 28 . 09.2017 ORDER PER R.K.PANDA, AM: THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS DATED 31 ST MARCH, 2017 OF THE CIT(A)- GHAZIABAD RELATING TO ASSESSMENT YEAR, 2012-13. ITA NO. 3682/DEL/2017 :- 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : - 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WITHOUT PRO VIDING DUE OPPORTUNITY. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WITHOUT ADV ERTING TO THE MERITS OF THE CLAIM, AND THROUGH A COMPLETELY NON-S PEAKING ORDER. ITA NO. 3682,3683/DEL/2017 (KEWAL LAKHERA) 2 3. THAT ON THE FACTS AND IN CIRCUMSTANCES OF TH CAS E AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION FOR LON G TERM CAPITAL GAIN OF RS. 797135. ITA NO. 3683/DEL/2017:- 3. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WITHOUT PROVIDING DUE OPPORTUNITY. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL WITHOUT ADVERTING TO THE MERITS OF THE CLAIM, AND THROUGH A COMPLETELY N ON-SPEAKING ORDER. 3. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF R S. 165367 U/S 271(1)(C) OF THE ACT. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBM ITTED THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 31.03.20 13 DECLARING INCOME OF RS. 2,77,940/-. THE AO COMPLETED THE ASSE SSMENT U/S 143(3) DETERMINING THE TOTAL INCOME AT RS. 10,86,32 4/-. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). HOWEVER, DUE TO NON-APPEARANCE FROM THE SIDE OF ASSESSEE, THE LD. CIT(A) DISMISSED THE APPEAL FOR NON-PROSECUTION. SIMILARLY, HE ALSO CONFIRMED THE P ENALTY OF RS. 1,65,367/- LEVIED BY THE AO U/S 271(1)(C) OF THE IT ACT. HE SUBMITTED THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUE ON ME RIT. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOU LD BE GIVEN ONE FINAL OPPORTUNITY TO SUBSTANTIATE HIS CASE. 5. THE LD. DR ON THE OTHER HAND STRONGLY OPPOSED THE A RGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. REFER RING TO THE ORDER ITA NO. 3682,3683/DEL/2017 (KEWAL LAKHERA) 3 OF THE CIT(A), HE SUBMITTED THAT AMPLE OPPORTUNITY WAS GIVEN TO THE ASSESSED BY LD. CIT(A). THEREFORE, THE CASE NEED NO T BE RESTORED TO THE FILE OF THE CIT(A) AND THE APPEALS FILED BY THE ASS ESSEE SHOULD BE DISMISSED. 6. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I FIND FROM THE ORDER OF THE CIT(A) THAT HE HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE DUE TO NON-APPEARANCE AND HAS NOT DECIDED APPEALS ON MERIT. IT IS THE SET TLED PROPOSITION OF LAW THAT THE LD. CIT(A) CANNOT SIMPLY DISMISS THE A PPEAL FOR NON PROSECUTION AND HE HAS TO DECIDE THE APPEAL ON MERI T. SINCE IN THE INSTANCE CASE, THE APPEALS HAVE NOT BEEN DECIDED ON MERIT, THEREFORE, I DEEM IT PROPER TO RESTORE THE ISSUES TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE ON MERIT AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSED IS ALSO H EREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND NOT TO SEEK ANY ADJOUR NMENT UNDER ANY PRETEXT. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSES. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT AT THE TIME OF HEAR ING ITSELF I.E. ON 28.09.2017) SD/- (R.K.PANDA) ACCOUNTANT MEMBER DATED: 28 /09/2017 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) ITA NO. 3682,3683/DEL/2017 (KEWAL LAKHERA) 4 DATE INITIAL 1. DRAFT DICTATED ON 28/09/2017 2. DRAFT PLACED BEFORE AUTHOR 28/09/2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER /09/2017 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.