DCIT, New Delhi V. M/s. A.K. Capital Market Ltd., New Delhi

ITA 3767/DEL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74058 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 05-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RENU JAUHRI
• Assessee Lawyers: VED JAIN SMT RANU JAIN; VENKETESH
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .3767/DEL/2010 3767/DEL/2010 3767/DEL/2010 3767/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006- -- -07 0707 07 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -2 22 20, 0,0, 0, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, 6, TILAK MARG, 6, TILAK MARG, 6, TILAK MARG, 6, TILAK MARG, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : PAN : PAN : PAN : AADCA9960D. AADCA9960D. AADCA9960D. AADCA9960D. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. RENU JAUHRI, CIT-DR. RESPONDENT BY : SHRI VED JAIN, ADVOCATE, SMT. RANU JAIN AND SHRI VENKETESH MOHAN, CAS. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-I, NEW DELHI DATED 31 ST MAY, 2010 FOR THE AY 2006-07. 2. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED DR THAT THIS APPEAL ALONGWITH THE GROUP OF APPEALS I.E . ITA NOS.2733 TO 2737/DEL/2010, 3683 TO 3687/DEL/2010, 3274 TO 3280/ DEL/2010 AND 4097/DEL/2010 WAS DECIDED BY THE ITAT VIDE ORDER DA TED 14 TH OCTOBER, 2011 AND ALL THESE 19 APPEALS WERE SET ASIDE TO THE FILE OF THE CIT(A) FOR READJUDICATION AFTER ALLOWING ADEQUATE OPPORTUN ITY OF BEING HEARD TO THE ASSESSING OFFICER. THEREAFTER, IN THE MISCE LLANEOUS APPLICATION, THIS APPEAL WAS RECALLED VIDE ORDER DATED 12 TH OCTOBER, 2012 IN M.A.NO.28/DEL/2012 BECAUSE, UNLIKE OTHER CASES, THE ADDITIONAL GROUND WAS NOT FILED IN THIS APPEAL. HE STATED THAT NOW T HE CIT (CENTRAL)-III, VIDE ORDER DATED 7.8.2013, HAS DIRECTED THE ACIT, C ENTRAL CIRCLE-2, NEW DELHI TO FILE THE ADDITIONAL GROUND READING AS UNDE R:- ITA-3767/D/2010 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLO WING RELIEF TO THE ASSESSEE BY DENYING OPPORTUNITY TO THE ASSES SING OFFICER EVEN THOUGH THE CIT(A) INSISTED SUCH OPTION/INFORMATION IN ITNS-51 WHICH WAS SUBMITTED T O HIM ON 25.03.2010 WITH REQUEST OF A.O. TO BE PRESENT DU RING HEARING OF APPEAL. 3. COPY OF THE ORDER OF THE CIT, CENTRAL-III IS FUR NISHED BEFORE US AND IT IS REQUESTED BY THE LEARNED DR THAT EITHER THE H EARING MAY BE ADJOURNED OR HE SHOULD BE ALLOWED TO RAISE THE ABOV E ADDITIONAL GROUND ORALLY ON BEHALF OF THE ASSESSING OFFICER BECAUSE T HE CIT, CENTRAL-III, NEW DELHI HAS ALREADY PERMITTED RAISING OF SUCH ADD ITIONAL GROUND. HE ALSO REQUESTED FOR ADMISSION OF THE ABOVE ADDITIONA L GROUND. 4. LEARNED COUNSEL FOR THE ASSESSEE FAIRLY STATED T HAT THE LEARNED DR MAY BE PERMITTED TO RAISE THE ABOVE ADDITIONAL G ROUND ORALLY BECAUSE, OTHERWISE, THE HEARING MAY LINGER ON FOR S EVERAL TIMES. HE FURTHER STATED THAT HE HAS NO OBJECTION IN ADMISSIO N OF ABOVE ADDITIONAL GROUND BECAUSE THE SAME HAS ALREADY BEEN ADMITTED B Y THE ITAT IN OTHER COMPANIES OF THE SAME GROUP. 5. WITH THE ABOVE CONCESSION OF THE LEARNED COUNSEL , LEARNED DR IS PERMITTED TO RAISE THE ABOVE ADDITIONAL GROUND ORAL LY AND THE SAME IS ADMITTED ALSO FOR ADJUDICATION. 6. SO FAR AS ADJUDICATION ON MERITS OF ABOVE ADDITI ONAL GROUND IS CONCERNED, WE FIND THAT THIS ISSUE IS DECIDED IN TH E OTHER COMPANIES OF THE ASSESSEES GROUP VIDE ITA NO.2733/DEL/2010 AND OTHERS WHEREIN THE ITAT, VIDE ORDER DATED 14 TH OCTOBER, 2011, HELD AS UNDER:- 9. THEREFORE, THE SECTION PROVIDES THAT ASSESSING OFFICER HAS A RIGHT OF HEARING AT THE TIME OF HEARI NG OF THE ITA-3767/D/2010 3 APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE EXPRESSION EMPLOYED IS SHALL, EVI NCING THE MANDATE OF THE PROVISION AND THIS IS IN KEEPING THE NATURAL JUSTICE PRINCIPLE OF AUDI ALTERAM PARTEM, I.E., HE AR THE OTHER PARTY, FOR NOBODY CAN BE CONDEMNED UNHEARD A ND EVERYBODY HAS TO BE PROVIDED A FAIR AND PROPER OPPO RTUNITY OF HEARING. 10. THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS) ARE IN CLEAR VIOLATION OF THE NATURAL JUS TICE PRINCIPLE OF AUDI ALTERAM PARTEM. 11. THE ASSESSEES RELIANCE ON HARYANA FINANCIAL CORPORATION IS NOT OF ANY HELP TO THEM. FIRSTLY, IT NOWHERE OVERRIDES THE NATURAL JUSTICE OF PRINCIPLE OF AUDI ALTERAM PARTEM. FURTHER THEREIN, IT WAS HELD THAT NO PREJU DICE HAD BEEN CAUSED TO M AND THAT THE ONLY CONCLUSION WHI CH COULD BE DRAWN WAS THAT HAD M BEING GIVEN A NOTIC E, IT WOULD NOT HAVE MADE ANY DIFFERENCE. IN THE PRESENT CASE, HOWEVER, IT CANNOT BE SAID SO. THE APPEALS OF THE ASSESSEES HAVE BEEN ALLOWED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT AFFORDING ANY OPPORTUN ITY OF HEARING TO THE ASSESSING OFFICER AND THERE IS NO RE ASON, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TO CONCLUD E THAT HAD THE ASSESSING OFFICER BEEN GIVEN A NOTICE, IT W OULD NOT HAVE MADE ANY DIFFERENCE AND THAT THEREFORE, NO PRE JUDICE HAD BEEN CAUSED TO THE ASSESSEE. 12. SO FAR AS REGARDS SATNAM SINGH (SUPRA), THERE IN ALSO, THE FACTS ARE ENTIRELY AT VARIANCE. THE REAS SESSMENT WAS SET ASIDE ON MERITS BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE TRIBUNAL HELD THE SERVICE OF NO TICE NOT VALID AND REMANDED THE MATTER. IT WAS IN THESE FAC TS THAT THE HON'BLE JURISDICTIONAL HIGH COURT HELD THAT THE TRIBUNAL SHOULD HAVE CONSIDERED THE ISSUE ON MERITS AND THAT THE ORDER OF THE REMAND WAS VALID. SATNAM SINGH TOO, THEREFORE, IS NOT APPLICABLE IN THE FACTS AND CIRCU MSTANCES OF THE PRESENT CASE, AS DISCUSSED ABOVE. 13. IN VIEW OF THE ABOVE, WE DEEM IT APPROPRIATE, I N THE INTEREST OF JUSTICE, TO REMAND ALL THESE NINETEEN A PPEALS TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS), TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORD ING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSIN G OFFICER ALONGSIDE THE ASSESSEES, IN ACCORDANCE WITH LAW. ITA-3767/D/2010 4 7. NO CONTRARY DECISION IS BROUGHT TO OUR KNOWLEDGE . WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF ITAT I N OTHER COMPANIES OF THE ASSESSEES GROUP, SET ASIDE THE ORDER OF LEARNE D CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER AS WELL AS ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WI TH LAW. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DEEM ED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 24 TH JANUARY, 2014. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 24.01.2014 VK. COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSIONER OF INCOME TA X, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -20, NEW DELHI. 20, NEW DELHI. 20, NEW DELHI. 20, NEW DELHI. 2. RESPONDENT : M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., M/S A.K. CAPITAL MARKET LTD., FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, FLAT NO.N, SAGAR APARTMENT, 6, TILAK MARG, NEW DELHI. 6, TILAK MARG, NEW DELHI. 6, TILAK MARG, NEW DELHI. 6, TILAK MARG, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR