Smt. Madhu, Meerut V. ITO, New Delhi

ITA 4067/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74371 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 04-04-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K GEOL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.4067,4068 & 4069 /DEL/2013 ASSESSMENT YEAR : 2002-03 & 2003-04 SMT. MADHU, ITO, W/O SHRI VIKRAM SINGH, WARD-1(4), 104-CHANDERLOK SABUN GODAM, NEW DELHI. MEERUT. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AFEPR AFEPR AFEPR AFEPR- -- -6648 6648 6648 6648- -- -L LL L APPELLANT BY : SHRI V.K. GEOL, ADVOCATE. RESPONDENT BY : SHRI KEYUR PATEL, SR. DR. ORDER PER BENCH: THESE ARE THREE APPEALS FILED BY THE ASSESSEE AND THE COM MON GROUNDS OF APPEALS IN THESE APPEALS ARE AS UNDER:- 1. THAT LD CIT HAS PASSED AN ORDER TREATING RECALL ORDER BY CIT(A) MEERUT DATED 31.5.2010 AS NON REST ORDER IS ARBITRARY , UNJUST, AND ILLEGAL. IN VIEW OF ITAT ORDER IN ASSESSEES CASE I N I.T.A. NO. 2854/DEL/2011 DATED 15.5.2012 IN WHICH ORDER OF REC ALL BY CIT(A) MEERUT WAS CONFIRMED AND DISMISSED THE DEPARTMENT APPE AL. 2. THAT NO PROPER AND REASONABLE OPPORTUNITY BEING GRAN TED TO THE ASSESSEE, HOWEVER, RECALLING THE ORDER BY THE CIT(A), M EERUT REGULAR HEARING WAS GOING ON. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MODIFY ANY GROUNDS DURING THE APPEAL PROCEEDINGS. ITA NO4067,4068&4069/DEL/2013 2 2. THE BRIEF ISSUE INVOLVED IS THAT AGAINST THE ORDER O F ASSESSING OFFICER IN THESE YEARS, THE ASSESSEE HAD FILED APPEAL BE FORE LD CIT(A). THE LD CIT(A) VIDE ORDER DATED 27.4.2009, 31.12.200 8 AND 31.12.2008 FOR ASSESSMENT YEAR 2002-03, 2003-04 & 2003-04 HAD DISM ISSED THE APPEAL OF ASSESSEE ON THE GROUND THAT NO COMPLIANCE WAS MADE. THE SAID ORDERS OF LD CIT(A) WERE RECALLED BY LD CIT(A) V IDE ORDER DATED 13.4.2011, 31.5.2010 AND 31.5.2010 RESPECTIVELY. BY THESE RECALLED ORDERS, THE ORDERS DISMISSING THE APPEAL WERE RECALLED O N THE GROUND THAT THESE APPEALS SHOULD BE DECIDED ON MERITS. THEN AG AIN LD CIT(A) VIDE ORDER DATED 25.3.2013 HAD HELD THE ORDERS OF RE CALLING AS ILLEGAL AND PASSED THE FOLLOWING ORDERS FOR ALL THESE THREE YEA RS VIDE SEPARATE ORDERS. THE ORDER FOR ASSESSMENT YEAR 2002-03 IS REPRODUC ED BELOW: TO MS. MADHU, W/O SHRI VIKRAM SINGH, 104-CHANDERLOK, SABUN GODAM, MEERUT. SUB: A. NO. 072/06-07 FOR A.Y. 2002-03 IN THE ABOVE MENTIONED APPEAL AN APPEAL ORDER DATED 27.4.2009 HAD BEEN PASSED DISMISSING THE APPEAL. SUBSEQUENTLY, AN ORDER OF RECALL DATED 13.4.2011 WAS PASSED RECALLING THE ABOVE MENTIONED APPEAL TO BE DECIDED A FRESH MERIT. THE HON'BLE ITAT F BENCH NEW DELHI IN I.T.A. NO. 31 63/DEL/2011 PASSED IN THE CASE OF SHRI PANKAJ KUMAR SHARMA (A.Y. 2 007-08) DATED 18.8.2011 HAS HELD THAT THE CIT(A) HAS NO POWER PROVIDED UNDER THE ACT TO RECALL HIS ORDER PASSED IN RESPECT OF AN APPEAL FILED BEFORE HIM. 3. AGAINST THESE ORDERS THE ASSESSEE IS IN APPEAL BEFORE U S. 4. AT THE OUTSET, THE LD AR INVITED OUR ATTENTION TO ITAT ORDER DATED 15.5.2012 IN THE CASE OF ASSESSEE HERSELF FOR ASSESSMENT YEAR 2002-03 BY WHICH THE APPEAL OF REVENUE AGAINST THE CANCELLAT ION OF RECALLED ITA NO4067,4068&4069/DEL/2013 3 ORDER OF LD CIT(A) WAS DISMISSED BY ITAT. IN VIEW OF TH E ABOVE, THE LD AR SUBMITTED THAT REVENUES APPEAL IN THIS CASE HAS ALR EADY BEEN DECIDED AGAINST THE REVENUE. THEREFORE, IN OTHER YE ARS ALSO THE APPEALS OF ASSESSEE BE ALLOWED. 5. THE LD DR IMMEDIATELY INVITED OUR ATTENTION TO T HE SAID ITAT ORDER AND SUBMITTED THAT THE ORDER WAS NOT DISMISSED ON MERITS BUT WAS DISMISSED DUE TO APPEAL EFFECT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. / WE FIND THAT LD CIT(A)S ORDER DATED 23.3.2013 TREATED RECALLED ORDE R AS NONREST AND HAD HELD THAT ORDER DISMISSING THE APPEAL WAS VALID. T HE LD CIT(A) HAD HELD THAT CIT DID NOT HAVE POWER TO RECALL HIS ORDER . THEREFORE, HIS ORDER FOR RECALLING WAS NOT LEGAL. HOWEVER, WE FIND THAT AN OFFICER WHO IS HAVING THE POWERS TO ADJUDICATE ON A PARTICULAR ISSU E HAS INHERENT POWER OF RECALLING OF THAT ORDER ALSO AND MOREOVER W E FIND THAT THERE IS NO LOSS TO REVENUE AS THE CASES OF THAT ASSESSEE ARE BEING H EARD ON MERITS. IN THESE APPEALS THE ASSESSEES RIGHT OF HEARING ON MERIT HAS ONLY BEEN UPHELD. RIGHT OF HEARING IS AN IMPORTANT R IGHT AND IN THESE CASES, THE LD CIT(A) HAS ONLY RECALLED HIS EARLIER ORDE RS ONLY FOR HEARING ON MERITS KEEPING IN VIEW THE RULES OF NATURAL JUSTICE . THEREFORE, WE SEE MERITS IN THE ARGUMENTS OF LD AR THAT THE APPELLA TE PROCEEDINGS IN THE YEARS UNDER CONSIDERATION ARE ALREADY IN PROCESS AN D THE MATTER WILL BE DECIDED ON MERITS AND THEREFORE, WE SEE NO ME RIT IN THE ARGUMENTS OF THE LD DR AND ALLOW THE APPEALS FILED BY ASSESSEE. 7. IN VIEW OF THE ABOVE, THE APPEALS OF THE ASSESSEE ARE ALLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON DAY O F MARCH, 2014. SD/- SD/- (U.B.S. BEDI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 21.03.2014. HMS ITA NO4067,4068&4069/DEL/2013 4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 4.3.2014 DATE OF DICTATION 13.3.2014 DATE OF TYPING 13.3.2014 DATE OF ORDER SIGNED BY 21.3.2014 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.