M/s. Kendriya Karamchari Evam Mitra Sehkari Awas Samiti Ltd., Ghaziabad V. Addl. CIT, Ghaziabad

ITA 3727/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4657 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-05-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 11-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY VARMA
• Assessee Lawyers: RA VI BHATIA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS. 3725 TO 3729/DEL/2013 & 972/ DEL/2015 A.YRS.: 1997-98, 1998-99, 2001-02, 2002-03, 2003-0 4 & 2009-10 KENDRIYA KARAMCHARI EVAM MITRA VS. ADDL. CIT, RANG E-I, SEHKARI AWAS SAMITI LTD., GHAZIABAD (UP) C/O THE SECRETARY, KARAMCHARI EVAM MITRA SEHKARI AWAS SAMITI LTD., SEEMANT VIHAR, KAUSHAMBI, GHAZIABAD (PAN: AAAJK0572D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAVI BHATIA, ADV. DEPARTMENT BY : SH. VIJAY VARMA, CIT(DR) ORDER PER H.S. SIDHU, JM: THESE 06 APPEALS HAVE BEEN FILED BY THE ASSESSEE AG AINST THE RESPECTIVE ORDERS OF LD. CIT(A), GHAZIABAD RELATING TO ASSESSMENT YEARS 1997-98, 1998-99, 2001-02, 2002-03, 2003-04 & 2009-10 RESPECTIVELY. SINCE THE ISSUES INVOLVED IN THESE APPEA LS ARE COMMON AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHE R AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 3725/DEL/2013 (AY 1997-98). 2 2. THE COMMON GROUNDS RAISED BY THE ASSESSEE IN IT A NOS. 3725-3729/DEL/2013 (AYRS. 1997-98, 1998-99, 2001-02 , 2002-03, 2003-04) READ AS UNDER:- 1. THAT THE ORDER DATED 25.03.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD AND THE ORDERS DATED 19-11-2008 PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-L, GHAZIABAD ARE BOTH BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 2. THAT THE LD. CIT (APPEALS) HAS GREATLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN A) NOT APPRECIATING THE CORRECT LEGAL POSITION OF THE CASE AND DISMISSING THE APPEAL JUST FOR THE SAKE OF DISMISSAL; B) DISMISSING THE APPEAL OF THE APPELLANT AND CONFIRMING THE ASSESSMENT ORDER PASSED BY AO WHEN HE WAS CLEARLY EXPLAINED AND REQUESTED THAT THE ITAT HAS CASE IN - A) NOT APPRECIATING THE CORRECT LEGAL POSITION OF THE CASE AND DISMISSING THE APPEAL JUST FOR THE SAKE OF DISMISSAL: 3 B) DISMISSING THE APPEAL OF THE APPELLANT AND CONFIRMING THE ASSESSMENT ORDERS PASSED BY AO WHEN HE WAS CLEARLY EXPLAINED AND REQUESTED THAT HAS ALREADY HEARD THE APPEALS FOR OTHER YEARS CONCERNING THE VARIOUS ISSUES INCLUDING THE APPLICABILITY OF PRINCIPLES OF MUTUALITY TO THE SOCIETY AND THAT THE ORDERS MAY BE KEPT IN ABEYANCE BY THE LD. CLT (APPEALS) TILL THE RECEIPT OF THE APPELLATE ORDER FROM THE ITAT, ON THE SAME GROUNDS. C) IN JUST MENTIONING THE EXTRACTS OF THE ORDERS OF THE AO IN HIS ORDERS AND NOT GIVING ANY FURTHER REASONING/FINDING ON THE SAME. D) NOT MAKING ANY ARNENDRNENTS TO THE ASSESSED INCOME OF RS. 34,39,530/- BY THE A.O. 3. THAT THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE UNJUST, ARBITRARY, OUTSIDE THE SCOPE OF NATURAL JUSTICE AND DESERVE TO BE SET ASIDE SINCE THE ISSUES RELATING TO PRINCIPLES OF MUTUALITY AND CORRECT POSITION OF FACTS AND LAW HAVE NOT BEEN EXAMINED PROPERLY APPRECIATED AND RECORDED BY THE AUTHORITIES BELOW: 4 4. THAT IN VIEW OF THE VARIOUS JUDICIARY PRONOUNCEMENTS, THE APPELLANT SEEKS PERMISSION TO PUT FORTH DETAILED ARGUMENTS IN LAW AND ON FACTS OF THE CASE AND TO ADD/ DELETE AMENDS ANY GROUNDS OF APPEAL AT THE TIME OF HEARING OF THE CASE. PRAYER PRAYER THAT THE IMPUGNED ADDITIONS MADE BY THE INCOME TAX OFFICER AND SUSTAINED BY CIT (APPEALS) REFERRED TO ABOVE MAY KINDLY BE DELETED AND ADEQUATE RELIEF AFFORDED TO THE APPELLANT BY DELETING THE ADDITIONS AND SETTING ASIDE THE ORDERS FOR FRESH EXAMINATION ON FACTS AND LAW AS PER THE DIRECTIONS OF THE ITAT IN ITA NO. 3598/DEL/2008 FINANCIAL ASSESSMENT YEAR 2004/05 ITA NO. 1745/DE1J2009 FINANCIAL ASSESSMENT YEAR 2005/06 ITA NO. 2170/DEIJ2011 FINANCIAL ASSESSMENT YEAR 1999/2000 ITA NO. 2171/DEIJ2011 FINANCIAL ASSESSMENT YEAR 2000/01 DECIDED BY THE HON'BLE ITAT ON 05.04.2013. 5 3. THE GROUNDS RAISED IN ITA NO. 972/DEL/2015 (AY 2 009-10) READ AS UNDER:- I) THAT THE ORDER PASSED BY THE LD. CIT(A), GHAZIABAD, IS BAD IN LAW AND FACTS OF THE CASE, DESERVE TO BE SET ASIDE. II) THAT THE ORDER PASSED BY THE LD. CIT(A), GHAZIABAD, IS UNJUST AND ARBITRARY AND OUTSIDE THE SCOPE OF PRINCIPAL OF NATURAL JUSTICE. III) THAT THE LD. CIT(A) HAS NOT APPLIED HIS MIND JUDICIOUSLY AND PASSED THE ORDER ARBITRARILY WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD IN SPITE OF THE WRITTEN REQUEST BY THE APPELLANT DURING THE COURSE OF HEARING. IV) THE APPELLANT CRAVES LEAVE TO ADD/ ALTER ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 5. LD. COUNSEL OF THE ASSESSEE IN RESPECT OF THE AFORESAID APPEALS, HAS STATED THAT THE LD. CIT(A) HAS PASSED THE ORDER AGAINST THE PRINCIPLES OF NATURAL JUSTICE BY WAY OF EX PARTE ORDER IN 6 NOT PROVIDING SUFFICIENT OPPORTUNITIES TO THE ASSESSEE A ND NOT DECIDED THE APPEAL ON MERITS. HOWEVER, AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE HAS ALSO FILED A PAPER BOOK CONTAINING PAGES 1 TO 77 IN WHICH HE HAS ATTACHED THE COPY OF ITAT ORDER DATED 5.4.2013 PASSED BY THE D BENCH IN YEARS 2004- 05, 2005-06, 1999-2000 AND 2000-01; COPY OF REVIEW ORDER DATED 1 3.12.2016 PASSED BY D BENCH FOR THE ABOVE REFERRED 4 YEARS 20 04-05, 2005- 06, 1999-2000 AND 2000-01; COPY OF STANDARD BYE LAWS AS PRESCRIBED BY UP COOPERATIVE HOUSING SANGH LIMITED AN D ADOPTED BY APPELLANT SOCIETY; COPY OF SECTION 72 OF THE UP COO PERATIVE SOCIETIES ACT, 1965 REGARDING DISPOSAL OF FUNDS AN D DISPOSAL ON DISSOLUTION OF THE SOCIETY; LIST OF ALLOTTEE MEMBERS WITH THEIR MEMBERSHIP NUMBERS, FLAT NUMBERS, NAMES, FATHERS N AMES, ADDRESSES, OCCUPATION AND SHARE HELD BY EACH MEMBER AND THE CASE LAWS RELIED UPON ON PRINCIPLES OF MUTUALITY:- CIT VS. BANKIPUR CLUB LTD. 226 ITR 97 (SC); CHELMSF ORD CLUB VS CIT 243 ITR 89 (SC); CIT VS. ROYAL WESTERN INDIA TURF CL UB LTD. 24 ITR 551 (SC); CIT VS. APSARA COOP. HOUSING SOCIETY L TD. 204 ITR 662 (KOLKATA H.C.) AND CIT VS. ADARSH COOP. HOUSING SOCIETY LTD. 213 ITR 677 (GUJARAT H.C.), AND STATED THAT LD. CIT(A) HAS NOT CONSIDERED THE AFORESAID DOCUMENTARY EVIDENCES AND DI D NOT GIVE OPPORTUNITY TO SUBSTANTIATE THE CASE OF THE ASSESSEE. THEREFORE, HE 7 REQUESTED THAT THE ISSUES INVOLVED IN THESE 06 APPEAL S MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AND PASS A SPEAKING ORDER THEREON. HE FURTHER STATED AS FA R AS ITA NO. 972/DEL/2015 (AY 2009-10) IS CONCERNED, THERE IS DEL AY OF 30 DAYS FOR WHICH THE PRESIDENT OF THE ASSESSEE HAS FILED AN APPLICATION DATED 16.2.2015 WHICH IS ON RECORD STATING THEREIN THAT DELAY IN FILING THE APPEAL IS UNINTENTIONAL, BECAUSE THE KEY PE RSON I.E. THE PRESIDENT OF THE ASSESSEE, SH. PRADEEP SHARMA WAS ADV ISED TO TAKE COMPLETE REST, HENCE, DELAY WAS OCCURRED, WHICH MAY K INDLY BE CONDONED. 5. AT THE TIME OF HEARING, LD. CIT(DR) BY FILING AN APPLICATION DATED 30.8.2017 HAS REQUESTED FOR ADJOURNING THE APP EALS. HOWEVER, LD. CIT(DR) ALSO DRAW OUR ATTENTION TOWARDS THE PAPER BOOK EARLIER FILED BY THE THEN LD. CIT(DR), D-BENCH , MS. SULEKHA VERMA, WHICH IS CONTAINING PAGES 1 TO 59 IN WHICH TH E COPY OF ITAT ORDER PASSED IN ITA NO. 15596/DEL/2007 TO 1602/ DEL/2007 DATED 6.7.2007; COPY OF CIT(A) IN AY 1999-2000; COPY OF CIT(A) IN AY 2000-01 AND SEQUENCE OF EVENTS AND REQUESTED TO C ONSIDER THE SAME WHILE ADJUDICATING THE APPEALS. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDERS IN ALL THE APPEALS AND PAPER BOOKS FILED BY BOTH THE PARTIES. WE HAVE ALSO GONE THROUGH THE APPLICATION 8 FILED BY THE LD. CIT(DR) FOR ADJOURNING THE APPEALS , WE ARE OF THE CONSIDERED VIEW THAT NO USEFUL PURPOSE WOULD BE SER VED IN ADJOURNING THE APPEALS BECAUSE THESE APPEALS ARE VER Y OLD AND ARE BEING DELAYED UNNECESSARILY WHICH RELATES TO ASSESSM ENT YEAR 1997-98, 1998-99, 2000-01, 2001-02, 2002-03 AND 200 3-04. THEREFORE, WE REJECT THE REQUEST OF THE LD. CIT(DR). 6.1 AS REGARDS THE ITA NO. 972/DEL/2015 (AY 2009-10 ) IS CONCERNED, WE NOTE THAT THERE IS A DELAY OF 30 DAYS FOR WHICH THE PRESIDENT OF THE ASSESSEE HAS FILED AN APPLICATION DATE D 16.2.2015 WHICH IS ON RECORD STATING THEREIN THAT DELAY IN FILIN G THE APPEAL IS UNINTENTIONAL, BECAUSE THE KEY PERSON I.E. THE PRESIDE NT OF THE ASSESSEE, SH. PRADEEP SHARMA WAS ADVISED TO TAKE COM PLETE REST, HENCE, DELAY WAS OCCURRED. AFTER PERUSING THE AFORESA ID APPLICATION, WE ARE OF THE CONSIDERED VIEW THAT REASONS FOR D ELAY IN FILING THE APPEALS ARE PLAUSIBLE, THEREFORE, WE DEEM FIT AND PR OPER TO CONDONE THE DELAY OF 30 DAYS, HENCE, WE CONDONE THE DELAY IN DISPUTE. 6.2 AFTER PERUSING THE RECORDS, WE FURTHER FIND THAT LD . CIT(A) HAS PASSED THE ORDER AGAINST THE PRINCIPLES OF NATURAL JUS TICE BY WAY OF EXPARTE ORDER IN NOT PROVIDING SUFFICIENT OPPORTUNITIE S TO THE ASSESSEE AND NOT DECIDED THE APPEALS. HENCE, THE ISS UES INVOLVED IN THESE APPEALS NEEDS TO BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AND PASS A SPEAKING ORDER 9 THEREON. THEREFORE, WE HOLD AND DIRECT ACCORDINGLY. L D. CIT(A) IS ALSO DIRECTED TO CONSIDER THE PAPER BOOKS FILED BY T HE ASSESSEE BEFORE US WHICH IS CONTAINING PAGES 1 TO 77 IN WHICH COPY OF ITAT ORDER DATED 5.4.2013 PASSED BY THE D BENCH IN YEAR S 2004-05, 2005-06, 1999-2000 AND 2000-01; COPY OF REVIEW ORDE R DATED 13.12.2016 PASSED BY D BENCH FOR THE ABOVE REFERRED 4 YEARS 2004-05, 2005-06, 1999-2000 AND 2000-01; COPY OF STA NDARD BYE LAWS AS PRESCRIBED BY UP COOPERATIVE HOUSING SANGH LIMITED AND ADOPTED BY APPELLANT SOCIETY; COPY OF SECTION 72 OF TH E UP COOPERATIVE SOCIETIES ACT, 1965 REGARDING DISPOSAL OF FUNDS AND DISPOSAL ON DISSOLUTION OF THE SOCIETY; LIST OF ALLOT TEE MEMBERS WITH THEIR MEMBERSHIP NUMBERS, FLAT NUMBERS, NAMES, FATHE RS NAMES, ADDRESSES, OCCUPATION AND SHARE HELD BY EACH MEMBER AND THE CASE LAWS RELIED UPON ON PRINCIPLES OF MUTUALITY:- CIT VS. BANKIPUR CLUB LTD. 226 ITR 97 (SC); CHELMSF ORD CLUB VS CIT 243 ITR 89 (SC); CIT VS. ROYAL WESTERN INDIA TURF CL UB LTD. 24 ITR 551 (SC); CIT VS. APSARA COOP. HOUSING SOCIETY L TD. 204 ITR 662 (KOLKATA H.C.) AND CIT VS. ADARSH COOP. HOUSING SOCIETY LTD. 213 ITR 677 (GUJARAT H.C.), HAS BEEN ATTACHED AND AL SO CONSIDER THE PAPER BOOK FILED BY THE LD. CIT(DR) WHICH IS C ONTAINING PAGES 1 TO 59 IN WHICH THE COPY OF ITAT ORDER PASSED IN IT A NO. 15596/DEL/2007 TO 1602/DEL/2007 DATED 6.7.2007; COP Y OF CIT(A) 10 IN AY 1999-2000; COPY OF CIT(A) IN AY 2000-01 AND S EQUENCE OF EVENTS HAS BEEN ATTACHED, A FTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE PARTIES AND PASS A SPEAKING ORDER. HO WEVER, THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE LD. CIT(A ) AND PRODUCE ALL THE DOCUMENTS BEFORE HIM TO SUBSTANTIATE ITS CLAIM AND NOT TO TAKE ANY UNNECESSARY ADJOURNMENT. 7. IN THE RESULT, ALL THE 06 APPEALS FILED BY THE AS SESSEE STAND ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11/09/2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 11/09/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR