Sh. Mohd. Fardeen, Meerut V. ITO, Meerut

ITA 3961/DEL/2014

• Counselvise Citation: 396120114 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 08-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Assessee Lawyers: V K GOEL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER ITA NO. 3961 /DEL/201 4 AY: 200 9 - 10 SH. MOHD. FARDEEN VS. ITO, WARD 1(4) C/O VINOD KUMAR GOEL, 282 MEERUT BOUNDARY ROAD, CIVIL LINES MEERUT PAN: AATPF 0791 J (APPELLANT) (RESPONDENT) A PPELLANT BY : SH. V.K. GOEL, ADV. RESPONDENT BY : SH. ROBIN RAWAL, SR.D.R ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 11.3.2014 OF LD.CIT(A) , MEERUT FOR THE ASSESSMENT YEAR 200 9 - 10, ON THE FOLLOWING GROUNDS. 1. THAT LD.CIT(A) HAS PASSED THE ORDER WITHOUT PROVIDING AN OPPORTUNITY BEING HEARD AFTER WRITTEN SUBMISSION FILED BY THE ASSESSEE. HENCE ORDER PASSED BY CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT WITHOUT PREJUDICE TO GROUND NO.1, LD.A.O. AS WELL AS CIT(A) IS IN ERROR THAT NET PROFIT RATE IS JUSTIFIED @ 21.5% ON SUPPRESSED SALE OF RS.42,84,600/ - . AO AS WELL AS CIT(A) HAS NOT GIVEN ANY BASIS. 3. THAT THE LD.A.O. IS IN ERROR CONFIRMING ADDITION OF RS.42,84,000/ - IN THE TOTAL INCOME OF THE ASSESSEE HOWEVER, A.O. HAS NOT MADE ANY SUCH ADDITION THEREFORE, IT IS ENHANCEMENT IN THE TOTAL INCOME OF THE ASSESSEE WHICH WAS NOT MADE BY THE A.O. AND CIT(A) HAS NOT ISSUED ANY NOTICE U/S 251(2) OF THE I.T.ACT WHICH IS NECESSARY FOR ENHANCEMENT IN TOTAL INCOME. 2. THE FACTS AS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR CONVENIENCE. ITA NO. 3961/DEL/2014 A.Y. 2009 - 10 MOHD. FARDEEN 2 3. I HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORD AVAILABLE BEFORE ME , SPECIALLY THE ORDER PASSED BY THE REVENUE A UTHORITIES ALONG WITH PAPER BOOK FILED BY THE ASSESSEE CONTAINING PAGES 1 TO 16 IN WHICH THE ASSESSEE HAS ATTACHED VARIOUS DOCUMENTARY EVIDENCES WHICH INCLUDES PHOTO COPY OF ITAT G BENCH, NEW DELHI; ORDER IN THE CASE OF MR.SHADAB IN ITA NO.3878/DEL/2013; PHOTO COPY OF CIT(A) MEERUT ORDER IN THE CASE OF SHRI SHAH KHALID IN APPEAL NO.391/11 - 12. 4. KEEPING IN VIEW THE WRITTEN SUBMISSIONS AS WELL AS DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE DT. 12.12.2011 BEFORE THE REVENUE AUTHORITIES AS WELL AS BEFORE ME IN THE SHAPE OF PAPER BOOK CONTAINING 1 TO 16 PAGES, I AM OF THE CONSIDERED VIEW THAT THE LD.FIRST APPELLATE AUTHORITY HAS PASSED THE IMPUGNED ORDER ON THE BASIS OF WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. I AM OF THE CONSIDERED VIEW THAT THE LD.FIR ST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE AND DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE WITHOUT PASSING A SPEAKING ORDER. HE HAS ONLY REPRODUCED THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND HAS NOT PROPERLY APPRECIATED TH E CONTENTION OF THE WRITTEN SUBMISSIONS AS WELL AS THE DOCUMENTARY EVIDENCE S FURNISHED BY THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE HIM . IN MY VIEW THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW AND WHICH DESERVES TO BE CANCELLED. IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUE IN DISPUTE TO THE LD.FIRST APPELLATE AUTHORITY WITH DIRECTIONS TO DECIDE THE SAME AFRESH AS PER LAW, AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY. IT IS MADE CLEAR THAT THE LD.FIRST APPELLATE ITA NO. 3961/DEL/2014 A.Y. 2009 - 10 MOHD. FARDEEN 3 AUTHORITY SHOULD ALSO EXAMINE THE DOCUMENTARY EVIDENCES AND WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE HIM AND ANY OTHER EVIDENCES WHICH THE ASSESSEE WANTS TO FILE BEFORE HIM, AND DECIDE THE ISSUE AFRESH AS PER LAW, AFTE R AFFORDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2015 . SD/ - ( H.S.SIDHU ) JUDICIAL MEMBER DATED: THE 21 ST AUGUST, 2015 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR