Usual Leasing & Finance P.Ltd, New Delhi V. ITO, Ward-18(2), New Delhi

ITA 374/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4782 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 12-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR JIWANI
• Assessee Lawyers: VIVEK AGGARWAL
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC+C : DELHI BEFORE N.K. SAINI, ACCOUNTANT MEMBER AND SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.374/DEL./2018 ASSESSMENT YEAR 2003-2004 M/S. USUAL LEASING & FINANCE (P) LTD., G-40, NIZAMUDDIN WEST, NEW DELHI 110 013. PAN AAACS4925F VS. THE INCOME TAX OFFICER, WARD-18(2), NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI VIVEK AGGARWAL, C.A. FOR REVENUE : SHRI VIJAY KUMAR JIWANI, SR. D.R. DATE OF HEARING : 06.08.2018 DATE OF PRONOUNCEMENT : 08 .08.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-22, NEW DELHI, DATED 14.08.2015, FOR THE A.Y. 2003-2004, CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2 ITA.NO.374/DEL./2017 M/S. USUAL LEASING & FINANCE (P) LTD., NEW DELHI. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT IN THIS CASE ASSESSMENT ORDER WAS PASSED ON 22.11.2010 UNDER SECTION 143(3)/148 OF THE I.T. ACT, 1961, MAKING ADDITION OF RS.10 LAKHS UNDER SECTION 68 OF THE I.T. ACT. THE A.O. VIDE ORDER DATED 08.03.2013 LEVIED THE PENALTY ON THE AFORESAID ADDITION. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LD. CIT(A). NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED SEVERAL DATES OF NOTICES IN THE IMPUGNED ORDER, IN WHICH, EITHER REQUEST FOR ADJOURNMENT WAS MADE OR THEREAFTER THERE WERE NO COMPLIANCE. THE LD. CIT(A) NOTED THAT PENALTY WAS IMPOSED BECAUSE ASSESSEE HAS BEEN A BENEFICIARY OF ACCOMMODATION ENTRIES WHICH WERE DETECTED BY INVESTIGATION WING, NEW DELHI. THE LD. CIT(A) IN THE ABSENCE OF ASSESSEE, DISMISSED THE APPEAL OF ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE FILED AN AFFIDAVIT OF SHRI PREM ARORA, DIRECTOR OF THE ASSESSEE-COMPANY STATING THEREIN THAT ASSESSEE FILED APPEAL BEFORE ITAT ON QUANTUM WHICH IS DECIDED VIDE ORDER DATED 09.12.2016 FOR 3 ITA.NO.374/DEL./2017 M/S. USUAL LEASING & FINANCE (P) LTD., NEW DELHI. SAME ASSESSMENT YEAR UNDER APPEAL AND REOPENING OF THE ASSESSMENT HAVE BEEN QUASHED. THE ASSESSEE, THEREAFTER, FILED A LETTER BEFORE THE LD. CIT(A) REQUESTING FOR FRESH DATE OF HEARING. HOWEVER, EX-PARTE IMPUGNED ORDER WAS RECEIVED ON 11.08.2017. THE COUNSEL FOR ASSESSEE WERE BUSY IN PREPARING OF INCOME TAX RETURNS AS THE TIME WAS EXTENDED FOR FILING OF THE RETURNS. THEREAFTER, THE APPEAL HAVE BEEN FILED BEFORE THE TRIBUNAL ON 12.01.2018. ASSESSEE, THEREFORE, PRAYED THAT THE COMPANY IS VERY MUCH INTERESTED IN PROSECUTING THE APPEAL, THEREFORE, AUTHORISED REPRESNTATIVE OF THE ASSESSEE REQUESTED THAT DELAY IN FILING THE APPEAL MAY BE CONDONED. AFFIDAVIT OF THE ASSESSEE IS NOT CONTROVERTED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. WE ARE, THEREFORE, SATISFIED WITH THE EXPLANATION OF ASSESSEE THAT THERE WAS BONAFIDE DELAY IN FILING THE APPEAL BELATEDLY BEFORE THE TRIBUNAL. THE DELAY IN FILING THE APPEAL IS THUS CONDONED PARTICULARLY WHEN QUANTUM APPEAL HAVE ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE. 4 ITA.NO.374/DEL./2017 M/S. USUAL LEASING & FINANCE (P) LTD., NEW DELHI. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). ACCORDING TO SECTION 250(6) OF THE I.T. ACT, THE LD. CIT(A) IS REQUIRED TO MENTION POINT FOR DETERMINATION AND REASONS FOR DECISION IN THE APPELLATE ORDER. THE LD. CIT(A) AFTER QUOTING GROUNDS OF APPEAL IN THE APPELLATE ORDER, MERELY HELD THAT ON PERUSAL OF THE ABOVE FACT, IT IS ESTABLISHED THAT IT IS A CASE OF CONCEALMENT OF INCOME FOR THE REASON THAT THE APPELLANT HAD TAKEN ACCOMMODATION ENTRIES OF RS.10,00,000/- FROM TWO PARTIES. IT WOULD, THEREFORE, SHOW THAT LD. CIT(A) WITHOUT CONSIDERING THE MATERIAL ON RECORD AND WITHOUT GIVING REASONS FOR DECISION IN THE APPELLATE ORDER, SIMPLY DISMISSED THE APPEAL OF ASSESSEE FOR NON-PROSECUTION. THUS, THE ORDER OF THE LD. CIT(A) CANNOT BE SUSTAINED IN LAW, PARTICULARLY, WHEN SUBSEQUENTLY THE QUANTUM APPEAL HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL. THE MATTER, THEREFORE, REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF ASSESSEE TO HIS FILE WITH A DIRECTION TO RE- 5 ITA.NO.374/DEL./2017 M/S. USUAL LEASING & FINANCE (P) LTD., NEW DELHI. DECIDE THE APPEAL OF ASSESSEE STRICTLY ON MERITS, BY GIVING REASONS FOR DECISION IN APPELLATE ORDER AND BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08.08.2018. SD/- SD/- (N.K. SAINI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 08 TH AUGUST, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 6. D.R. ITAT SMC + C BENCH, DELHI 7. GUARD FILE. //BY ORDER// ASST. REGISTRAR, ITAT DELHI BENCHES DELHI.