Bombay Highway Carries P.Ltd, New Delhi V. ITO, Ward-5(1), New Delhi

ITA 3804/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9681 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 30-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI SENIOR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT ITA NO.3804/DEL/2019 ASSESSMENT YEAR : 2014-15 BOMBAY HIGHWAY CARRIERS PVT. LTD. VS INC OME TAX OFFICER, C/O RAJEEV DINESH & ASSOCIATES, WARD-5(1), D-32, BALI NAGAR, NEW DELHI. NEW DELHI-110015 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.S. ANAND, ADVOCATE. RESPONDENT BY : MS. EKTA VISHNOI, SENIOR DR. DATE OF HEARING : 25.09.2019 DATE OF PRONOUNCEMENT : 25.09.2019 ORDER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2014-15 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-33, NE W DELHI DATED 27 TH DECEMBER, 2018. 2. IN THIS APPEAL, THE PRELIMINARY GRIEVANCE OF THE AS SESSEE IS THAT THE CIT(A) HAS DECIDED THE MATTER EX PARTE WITHOUT AFFO RDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. AT THE TIME OF HEARING, THE LEARNED ITA 3804/DEL/2019 2 REPRESENTATIVE FOR THE ASSESSEE REFERRED TO PARA 3 OF THE ORDER OF THE LEARNED CIT(A) WHEREIN IT HAS BEEN TABULATED, INTER ALIA, T HAT THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICE OF HEARING DATED 10.12.201 8 ISSUED FIXING THE DATE OF HEARING ON 26.12.2018. 3. IN THIS CONTEXT, IT HAS BEEN POINTED OUT THAT SU BSEQUENT TO FILING OF APPEAL, THERE WAS A CHANGE IN ADDRESS, AND WHEN THE FIRST NOTICE OF HEARING DATED 25.4.2018 WAS ISSUED AT THE OLD ADDRESS, THE ASSESSEE HAD RESPONDED VIDE LETTER DATED 21.5.2018 IN WHICH THE NEW ADDRES S WAS REFLECTED. HOWEVER, THE SUBSEQUENT NOTICE OF HEARING DATED 10 .12.2018 WAS ISSUED BY THE CIT(A) AT THE OLD ADDRESS STATED IN THE MEMORAN DUM OF APPEAL AND, THEREFORE, THE SAME COULD NOT REACH THE ASSESSEE; A ND, ACCORDINGLY, THERE WAS NO APPEARANCE BEFORE THE LD. CIT(A) ON 26.12.2018 I .E. THE DATE OF HEARING. IT WAS THEREFORE CONTENDED THAT THE MATTER BE RESTO RED BACK TO THE CIT(A) SO THAT THE ASSESSEE IS ABLE TO AVAIL PROPER OPPORTUN ITY TO PRESENT ITS CASE. 4. THE AFORESAID FACTUAL MATRIX HAS NOT BEEN CONTRO VERTED BY THE LD. DR. 5. I HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION S AND FIND THAT THE ASSERTIONS MADE BY THE ASSESSEE ARE DULY SUPPORTED BY THE RELEVANT DOCUMENTS PLACED IN THE PAPER BOOK FILED AT THE TIM E OF HEARING. IN THE PRESENT CASE, THE SUBSTANTIVE DISPUTE REVOLVES AROU ND THE EXEMPTION CLAIMED BY THE ASSESSEE U/S 80IA(4) OF THE ACT WITH RESPECT TO THE PROFITS DERIVED BY ITA 3804/DEL/2019 3 IT ON PROVIDING ON HIRE WATER TANKERS FOR SUPPLY OF WATER TO CERTAIN AREAS OF DELHI. IN THE ASSESSMENT ORDER, THE ASSESSING OFFI CER HAS RAISED MULTIPLE GROUNDS TO DENY THE EXEMPTION U/S 80IA(4)(I) OF THE ACT, INCLUDING THE FACT THAT THE ACTIVITY UNDERTAKEN BY THE ASSESSEE DOES N OT INVOLVE ANY INFRASTRUCTURE FACILITY AS CONTEMPLATED U/S 80IA( 4)(I)(B) OF THE ACT. THE CIT(A) HAS ALSO AFFIRMED THE STAND OF THE ASSESSING OFFICER PRIMARILY FOR THE REASONS ASSIGNED IN THE ASSESSMENT ORDER. 6. BE THAT AS IT MAY, I FIND THAT THE LD. CIT(A) DI D NOT HAVE THE BENEFIT OF THE ARGUMENTS OF THE ASSESSEE INASMUCH AS NONE WAS PRESENT ON BEHALF OF THE ASSESSEE BEFORE HIM. THE REASONS FOR NON-APPEARANC E, WHICH HAVE BEEN EXPLAINED BY THE ASSESSEE, DO NOT SHOW ANY MALA FID ES ON THE PART OF THE ASSESSEE. IN THIS VIEW OF THE MATTER, I AM INCLINE D TO SET-ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS F ILE FOR A FRESH ADJUDICATION IN ACCORDANCE WITH LAW. IT IS DIRECTED ACCORDINGLY . 7. ACCORDINGLY, WITHOUT GOING INTO THE MERITS OF TH E DISPUTE, THE APPEAL IS RESTORED BACK TO THE FILE OF THE CIT(A) WHO SHALL A DJUDICATE THE APPEAL DE NOVO AFTER ALLOWING THE ASSESSEE A REASONABLE OPPOR TUNITY OF BEING HEARD AS PER LAW. 8. IN THE RESULT, THE APPEAL IS ALLOWED, AS ABOVE. ITA 3804/DEL/2019 4 THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T IN THE PRESENCE OF BOTH THE PARTIES ON 25 TH SEPTEMBER, 2019. SD/- (G.S. PANNU) VICE PRESIDENT DATED: 25 TH SEPTEMBER, 2010 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSISTANT REGISTRAR