Smt. Sudesh Yadav, Ghaziabad V. ITO, Ghaziabad

ITA 3762/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1994 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DINESH MALHOTRA ADVS
• Keywords: Principle of natural justice; Set aside
• Section: 10

Judgement Text

PAGE | 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI , . . , BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SHRI R.K. PANDA, ACCOUNTANT M EMBER / ITA NO. 3762/DEL/2017 / ASSESSMENT YEAR: 2012-13 SUDESH YADAV, AKHILESH KUMAR, ADVOCATE .......... /APPELLANT CHAMBER NO. 206-207, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD PAN-ACPPY2991P VS ITO, WARD-2(3) GHAZIABAD . /RESPONDENT !'# /APPELLANT BY :SH. AKHILESH KUMAR & SH. DINESH MALHOTRA, ADVS !'# /RESPONDENT BY : SH. SARAS KUMAR, SR. DR DELHI BENCH B, NEW DELHI / ITA NO. 4749/DEL/2017 / ASSESSMENT YEAR: 2012-13 SH. DEVINDER SINGH CHAWLA, .......... /APPELLANT R-2/9, RAJNAGAR, GHAZIABAD PAN-ACTPC8576C VS DY. CIT, CIRCLE-1, GHAZIABAD . / RESPONDENT !'# / APPELLANT BY : NONE !'# / RESPONDENT BY : MS. ASHIMA NEB, SR. DR DELHI BENCH G, NEW DELHI PAGE | 2 / ITA NO. 3766/DEL/2017 / ASSESSMENT YEAR: 2012-13 VIJAY KUMAR GHELANI, 4023, NAYA BAZAR, DELHI .......... /APPELLANT PAN-AAGPG5572K VS ITO, WARD-47(1), NEW DELHI . / RESPONDENT !'# / APPELLANT BY : NONE !'# / RESPONDENT BY : SH. SARAS KUMAR, SR. DR DELHI BENCH F, NEW DELHI / ITA NO. 3783/DEL/2017 / ASSESSMENT YEAR: 2014-15 SMT. PRITI BAJAJ, H. NO. 39,SECTOR-15A, .......... /APPELLANT NOIDA, GAUTA BUDH NAGAR, UTTAR PRADESH PAN-ACTPB5683M VS ITO, WARD-2(4), NOIDA . / RESPONDENT !'# / APPELLANT BY : SH. SANKET CHHAJEDI, CA !'# / RESPONDENT BY : SH. SARAS KUMAR, SR. DR DELHI BENCH SMC, NEW DELHI / ITA NO. 3878/DEL/2017 / ASSESSMENT YEAR: 2012-13 SOCIETY FOR MEDIA AND VALUE EDUCATION, 375-A, MAYUR VIHAR-PHASE-I .......... /APPELLANT DELHI-110091 PAN-AACTS4225R VS PAGE | 3 ITO (E), WARD-2(2), NEW DELHI . / RESPONDENT !'# / APPELLANT BY : SH. PIYUSH KAUSHIK, ADV !'# / RESPONDENT BY : MS. ASHIMA NEB, SR. DR DELHI BENCH E, NEW DELHI / ITA NO. 4077/DEL/2017 / ASSESSMENT YEAR: 2012-13 M/S MAHARANA PRATAP EDUCATION CENTRE, .......... /APPELLANT 117/Q/66, SHARAD NAGAR, KANPUR PAN-AABTM5254H VS ACIT, EXEMPTION, CIRCLE, GHAZIABAD . / RESPONDENT !'# / APPELLANT BY : NONE !'# / RESPONDENT BY : MS. RAKHI VIMAL, SR. DR DELHI BENCH E, NEW DELHI / ITA NO.4223/DEL/2017 / ASSESSMENT YEAR: 2012-13 SH. NARENDRA PAL, .......... /APPELLANT DIVINE HERITAGE 11-A, GROUND FLOOR, GYAN KHAND-II INDIRAPURAM, GHAZIABAD PAN-AVQPP2801H VS ITO, WARD-2(5), . / RESPONDENT GHAZIABAD !'# / APPELLANT BY : SH. AKHILESH KUMAR, DINESH MALH OTRA, ADVS !'# / RESPONDENT BY : MS. RAKHI VIMAL, SR. DR DELHI BENCH C, NEW DELHI PAGE | 4 / ITA NO.4294/DEL/2017 / ASSESSMENT YEAR: 2011-12 M/S HILTI INDIA PVT. LTD., A-16, BLOCK B-I, MOHAN .......... /APPELLANT CO-OPERATIVE INDUSTRIAL ESTATE LIMITED, NEW DELHI PAN-AAACH3583Q VS DCIT, CIRCLE-11(1), NEW DELHI . / RESPONDENT !'# / APPELLANT BY : SH. ARUN BANSAL, CA !'# / RESPONDENT BY : MS. ASHIMA NEB, SR. DR DELHI BENCH C, NEW DELHI / ITA NO.4685/DEL/2017 / ASSESSMENT YEAR: 2013-14 GANGA KAVERI SEEDS PVT. LTD., 110, INDIRA MARKET OLD SUBZI MANDI, .......... /APPELLANT NEW DELHI PAN-AAACG3220D VS DCIT, CIRCLE-10(1), NEW DELHI . / RESPONDENT !'# / APPELLANT BY : NONE !'# / RESPONDENT BY : MS. ASHIMA NEB, SR. DR DELHI BENCH A, NEW DELHI / ITA NO.4778/DEL/2017 / ASSESSMENT YEAR: 2011-12 SMT. ASHA AGGARWAL, .......... /APPELLANT WZ-387, RISHI NAGAR, RANI BAGH, NEW DELHI PAN-AFBPA1083P VS ITO, WARD-41(4), PAGE | 5 NEW DELHI . / RESPONDENT !'# / APPELLANT BY : SH. VISHAL AGGARWAL, FCA !'# / RESPONDENT BY : SH. SANJAY KAPOOR, SR. DR DELHI BENCH E, NEW DELHI / ITA NO.4229/DEL/2017 / ASSESSMENT YEAR: 2008-09 M/S MANSI SEHKARI AWAS SAMITI LTD. .......... /APPELLANT C/O LK CHOUDHARY (SECRETARY), 99, MANSI VIHAR, SECTOR-23, GHAZIABAD PAN-AACTM8741Q VS DCIT, CIRCLE-1 GHAZIABAD . / RESPONDENT !'# /APPELLANT BY: SH.AKHILESH KUMAR, SH. DINESH MALHO TRA, ADVS !'# /RESPONDENT BY : MS. RAKHI VIMAL, SR. DR DELHI BENCH B, NEW DELHI / ITA NO.4072/DEL/2017 / ASSESSMENT YEAR: 2012-13 M/S DUGDH UTPADAK SAHKARI SANGH LTD., .......... /APPELLANT VILLAGE-ISMILA, SARAI CHABILA, BULANDSHAHR PAN-AAAD0476G VS ACIT, CIRCLE-BULANDSHAHR, . / RESPONDENT BULANDSHAHR !'# / APPELLANT BY : NONE !'# / RESPONDENT BY : MS. ASHIMA NEB, SR. DR $%!&'( / DATE OF HEARING : 25.11.2019 )* !&'( / DATE OF PRONOUNCEMENT: 29.11.2019 PAGE | 6 / ORDER PER SUSHMA CHOWLA, JM: THE PRESENT APPEALS ARE FILED BY DIFFERENT ASSESSEE AGAINST SEPARATE ORDERS OF CIT(A) RELATING TO ASSESSMENT YEARS 2012- 13/ 2013-14/ 2014- 15 AND ALSO ASSESSMENT YEARS 2008-09 AND 2011-12 AG AINST RESPECTIVE ORDERS PASSED BY THE AO UNDER SECTION 143(3)/144 OF THE ACT. 2. THE PRESENT BUNCH OF APPEALS HAVE BEEN LISTED FO R HEARING AND WE PROCEED TO DECIDE THE SAME BY THIS CONSOLIDATED ORD ER FOR THE SAKE OF CONVENIENCE. IN THIS BUNCH OF APPEALS, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) FOR DECIDING THE APPEALS EX PARTE QUA THE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE ADDITION. IN S OME APPEALS, THE APPEAL HAS BEEN DECIDED BY CIT(A) ON MERITS BUT EX PARTE QUA THE ASSESSEE. 3. IN SOME OF THE CASES, THERE IS NO REPRESENTATION ON BEHALF OF THE ASSESSEE BEFORE US BUT BECAUSE OF THE ISSUE INVOLVE D, WE PROCEED TO DECIDE THE SAID APPEALS AFTER HEARING THE LEARNED DR FOR T HE REVENUE. 4. IT IS A COMMON CASE RAISED BY DIFFERENT ARS FOR THE ASSESSEE BEFORE US THAT THE CIT(A) HAS PASSED THE EX PARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF HEARING AND WITHOUT GOING INTO THE MERITS OF THE CASE. IN OTHER CASES, IT IS POINTED OUT THAT WHERE THE CIT(A) HAS DECIDED THE ISSUE ON MERITS BUT EX PARTE QUA THE ASSESSEE. PAGE | 7 5. THE LEARNED DR FOR THE REVENUE ON THE OTHER HAND POINTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASS ESSEE. AND IN SOME CASES, THE CIT(A) HAS DECIDED THE ISSUES ON MERITS ALSO. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 250(6) OF THE ACT, IT IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEALS AFTER HEARING THE PART IES AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND ALSO TH E REASONS FOR THE DECISION. WHILE DECIDING THE APPEALS, CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON PROSECUTION BY RELYING ON THE RATIO/ S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & ANOTHER 118 ITR 461 (SC) AND LA TE TUKOJI RAO HOLKER VS. CWT 223 ITR 480 (MP). IN THESE FACTS AND CIRCUMSTANCES, WHERE THE CIT(A) HAD DISMISSED THE APPEAL BY APPLYI NG THE ABOVE SAID RATIOS, THE ORDER OF THE LEARNED CIT(A) SUFFERS FRO M INFIRMITY. THE CIT(A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO PRO VIDE REASONS FOR COMING TO THE CONCLUSION AND IN THE ABSENCE OF THE SAME, T HE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THE PRESENT BUNCH OF APPEALS, WE FIND THAT THAT THE CIT(A) HAS DISMISSED THE APPEAL EX PARTE QUA THE ASSESSEE AND IN MOST OF THE CASES, HAD FAILED TO DECIDE THE APPEALS BY PASSING REASONED ASSESSMENT ORDER. 7. IN SOME OF THE APPEALS, CIT(A) HAD DECIDED THE I SSUE ON MERITS BUT WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. SUCH ORDER/S SUFFERS FROM INFIRMITY AS IT VIOLATES THE P RINCIPLES OF NATURAL JUSTICE. IN SUCH CASES ALSO, WE ARE OF THE VIEW THA T REASONABLE OPPORTUNITY PAGE | 8 OF HEARING SHOULD BE AFFORDED TO THE ASSESSEE BEFOR E DECIDING THE ISSUES ON MERITS. 8. ACCORDINGLY, WE SET ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH DIRECTION TO THE CIT(A) TO DECIDE THE ISSUE ON MERITS BY A REASONED ORDER, AFTER AFFORDING REASONABLE OPPORTUNITY OF HE ARING TO THE ASSESSEE. FURTHER THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEF ORE THE CIT(A) AND PARTICIPATE IN THE APPELLATE PROCEEDINGS. THE APPEA LS ARE THUS DECIDED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERIT S OF THE ADDITION. 9. IN ITA NO. 4229/DEL/2017, THE APPEAL HAS BEEN DI SMISSED BY THE CIT(A) IN LIMINE ON THE GROUND THAT THE APPEAL HAS BEEN FILED LATE BY THE ASSESSEE. THE LEARNED AR FOR THE ASSESSEE BEFORE US HAS POINTED OUT THAT THERE IS NO DELAY IN FILING THE APPEAL LATE BY ONE DAY, AS THE LAST DAY WAS SUNDAY AND THE APPEAL WAS FILED ON THE NEXT WORKING DAY. HENCE THE APPEAL OF THE ASSESSEE BE DECIDED ON MERITS. WE FIN D THAT THE CIT(A) HAS DISMISSED THE APPEAL IN LIMINE BUT SINCE THERE IS N O DELAY IN FILING THE APPEAL LATE, THE APPEAL IS RESTORED BACK TO THE FIL E OF THE CIT(A) TO DECIDE THE SAME ON MERITS, AFTER AFFORDING REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE. 10. IN ITA NO. 4072/DEL/2017 THERE IS A DELAY OF 12 DAYS IN FILING THE APPEAL LATE BEFORE THE CIT(A). DESPITE THE ISSUE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE HONBLE APEX COURT I N COLLECTOR, LAND ACQUISITION VS. MST KATIJI & OTHERS REPORTED IN 167 ITR 471 HAS HELD THAT PAGE | 9 WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO N ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED, THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN JUS TICE BEING DONE BECAUSE OF NON-DELIBERATE DELAY. THERE IS NO PRESUMPTION TH AT DELAY IS OCCASIONED DELIBERATELY. WE ARE, THEREFORE, OF THE VIEW THAT S MALL DELAY OF 12 DAYS NEEDS TO BE CONDONED. ACCORDINGLY, WE CONDONE THE S AME AND REMIT THE MATTER BACK TO THE FILE OF CIT(A), WHO SHALL DECIDE THE APPEAL ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. 11. HENCE THIS BUNCH OF APPEALS ARE RESTORED BACK T O THE FILE OF RESPECTIVE CIT(A)/S TO DECIDE THE ISSUE ON MERITS A FTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH NOTICES ISSUED BY THE CIT(A ). THE PRELIMINARY ISSUE RAISED IN ALL THE APPEALS IS THUS DECIDED IN FAVOUR OF ASSESSEE. SINCE THE APPEALS ARE BEING DECIDED ON THE PRELIMINARY IS SUE WE ARE NOT ADDRESSING THE ISSUE RAISED ON MERIT. 12. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF NOVEMBER, 2019. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) (, (, (, (, /ACCOUNTANT MEMBER , , , , /JUDICIAL MEMBER / DATED : 29 TH NOVEMBER, 2019 SH PAGE | 10 !&-.-&/ COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $0 1 2 / THE CIT(A) 4. $3 $0 / THE PR. CIT 5. 6. -45& 6 6 / DR, ITAT, DELHI 578%/ GUARD FILE. $ $ $ $ / BY ORDER , -&& // TRUE COPY // :,; , 6 ASSISTANT REGISTRAR, ITAT, DELHI