Sh. Ashok Kumar Arora, New Delhi V. ITO, New Delhi

ITA 3826/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6380 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 02-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI K. N. CHARY, JUDICIAL MEMBER ITA NO.3826/DEL/2014 ASSESSMENT YEAR : 2009-10 ASHOK KUMAR ARORA, PRAVEEN AGGARWAL & CO., FLAT NO.251, DDA COMMERCIAL COMPLEX, JHANDEWALAN EXTN., NEW DELHI. VS. ITO, WARD- 20(3), NEW DELHI. PAN : ADPPA 8870 N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.V.S.R. KRISHNA, CA RESPONDENT BY : SHRI S. K. JAIN, SR.DR DATE OF HEARING : 28-03-2017 DATE OF PRONOUNCEMENT : 29-03-2017 O R D E R PER S.V. MEHROTRA, A.M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 29.01.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- XXII, NEW DELHI, U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ), RELATING TO ASSESSMENT YEAR 2009-10. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED RETURN SHOWING INCOME OF RS.3,22,880/-. SINCE IN-SPITE OF VARIOUS NOTICES, THE ASSESSEE DID NOT ATTEND, THEREFORE, THE ASSESSMENT U/S 144 WAS COMPL ETED DETERMINING THE TOTAL INCOME AT RS.40,21,450/-. LD. CIT(A) HAS NOTED IN PARA 4 THAT VARIOUS NOTICES 2 ITA NO.3826/DEL/2014 SENT TO ASSESSEE REMAINED UNSERVED AND THE NOTICE S ENT ON 14.01.2013 WAS RECEIVED BACK UNSERVED WITH THE COMMENTS LEFT WITH OUT ADDRESS OF THE POSTAL AUTHORITIES ON THE ENVELOPE. HE, THEREFORE, DISMIS SED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION APPLYING THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD., 38 ITD 320 (DELH I). BEING AGGRIEVED, THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL AND HAS, INTER-ALIA, TAKEN A GROUND THAT NO REASONABLE OPPORTUNITY HAD BEEN PROVIDED TO HIM. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE FILED AN AFFIDAVIT OF ASSESSEE, WHEREIN, IT IS AVERRED AS UNDER :- I, ASHOK KUMAR ARORA S/O LATE SH. KISHAN CHAND R/O 1327, A/8 GOVIND PURI, KALKAJI, NEW DELHI-110019 DO HEREBY SOLEMNLY AFFIRM AS UNDER :- 1. THAT NO NOTICE WAS RECEIVED BY ME FROM THE ASSESSIN G OFFICER AT ADDRESS GIVEN IN THE ASSESSMENT ORDER G-2 MALKA GANJ, NEW DELHI AS I HAVE CHANGED MY RESIDENCE TO 1327, A/8 GOVIND PURI, KALKAJI, NEW DELHI-110019 . 2. ALSO NO NOTICE WAS RECEIVED BY ME FROM C.I.T(A) WHI CH IS EVIDENT FROM THE BODY OF ASSESSMENT ORDER (ALTHOUGH SENT ON CORRECT ADDRESS) . THE REASON FOR NON-SERVICE OF NOTICES FROM C.I.T(A) MAY BE THAT I BEING A PARKING CONTRACTOR AT RAILWAY STATION MY TIMING OF BEING AT HOME ARE VERY LITTLE/UNCERTAIN. I STAY AT HOME FOR A SHORT PERIOD ONLY. 4. LD. DR POINTED OUT THAT IN LD. CIT(A)S ORDER TH E ADDRESS OF THE ASSESSEE IS GIVEN AS UNDER :- SH. ASHOK KUMAR ARORA, 1327, A/8 GOVINDPURI, KALKAJI, DELHI-110019 3 ITA NO.3826/DEL/2014 5. HE SUBMITTED THAT AT THE AFORESAID ADDRESS ONLY LD. CIT(A)S ORDER WAS SERVED ON ASSESSEE AND, THEREFORE, LD. CIT(A) RIGHT LY DISMISSED THE APPEAL OF ASSESSEE FOR NON-PROSECUTION. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. ADMITTEDLY, THE ASSESSMENT HAS BEEN MADE BY DISALLOWING EXPENSES TO THE TUNE OF RS.36,98,565/- WHICH ENHANCED THE ASSESSEES INCOME FROM RS.3,22,880/- TO RS.40,21,45 0/-. THIS ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT. FURTHER, BEFORE LD. CIT(A) ALSO NO REPRESENTATION COULD BE MADE BY ASSESSEE ON ACCOUNT OF NON-RECEIPT OF NOTICE OF HEARING FOR WHICH ASSESSEE HAS FILED AN AFFIDAVIT. UNDER SUCH CIRCUMSTANCES, IN ORDER TO IMPART SUBSTANTIAL JUSTICE TO ASSESSEE BY PROVIDING HIM A REASONABLE OPPORTUNITY OF HEARING, IT WOULD BE IN THE INTEREST OF JUSTICE TO SET-ASIDE THE ORDER OF LD. CIT(A) AND TO RESTORE THE MATTER BACK TO THE FILE O F THE ASSESSING OFFICER FOR PASSING THE ASSESSMENT ORDER DE-NOVO AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE. THE ASSESSEE IS DIRECTED TO C OOPERATE WITH THE DEPARTMENT IN FINALIZATION OF ASSESSMENT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF MARCH, 2017. SD/- SD/- (K. N. CHARY) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29-03-2017. SUJEET 4 ITA NO.3826/DEL/2014 COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI