Kamal Kapur, New Delhi V. Addl. CIT, New Delhi

ITA 3868/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69706 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 17-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N BHATIA
• Assessee Lawyers: ARUN GARG
• Keywords: Business income; Principle of natural justice

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI G. D. AGARWAL, HONBLE VICE PRESIDENT AND SHRI A. T. VARKEY, JUDICIAL MEMBER I TA NO. 3868 /DEL/ 2013 (ASSESSMENT YEAR: 2006 - 07 ) KAMAL KAPUR, A - 47, VISHAL ENCLAVE, NEW DELHI PAN AALPK7402K VS. ADDL. CIT RANGE - 26 NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : ARUN GARG, ADV. RESPONDENT BY: S. N. BHATIA, SR. DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XVII, NEW DELHI DATED 26.04.2013 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER O F INCOME TAX (A) ERRED IN PASSING EX - PARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ACTION OF A.O. IN TREATING SHORT TERM CAPITAL GAIN OF RS. 28,53,834/ - AS BUSINESS INCOME. 3. APROPOS GROUND NOS. 1 AND 2. THE ASSESSEE IS ASSAILING THE DECISION OF THE LD CIT(A) ON THE GROUND THAT IT HAS BEEN PASSED WITHOUT H EARING HIS S IDE OF THE DEFENCE AND THEREFORE, THE IMPUGNED ORDER IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. PAGE NO. 2 4. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT LD CIT(A) HAS PASSED AN EX - PARTE ORDER, WITHOUT HEARING THEM AND THEREFORE THERE IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. IN THE SAID CIRCUMSTANCES LD AR SUBMITS THAT THE CASE MAY BE REMANDED BACK TO THE LD CIT(A) FOR FRESH ADJUDICATION AFTER GIVING OPPORTUNITY TO THE ASSESSEE . 5 . THE LD DR RELIES ON THE ORDER OF THE LD CIT(A). 6 . A PERUSAL OF THE FRONT PAGE OF THE ASSESSMENT ORDER REVEALS THAT NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE THE IMPUGNED ORDER IS AN EX - PARTE ORDER. THEREFORE FOR THE INTEREST OF JUSTICE, WE SET ASIDE THE SAID EX - PARTE ORDER AND DIRECT THE LD CI T(A) TO GIVE ADEQUATE OPPORTUNITY TO THE ASSESSEE AND PASS FRESH ORDER AFTER HEARING THEM. 7 . IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 .12.2013. - S D / - - S D / - ( G. D. AGAR WAL) (A. T. VARKEY) HONBLE VICE PRESIDENT JUDICIAL MEMBER DATED 3 1 / 12 /2013 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI