Nirbhay Kumar, New Delhi V. ACIT, Circle-1, Noida

ITA 4089/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3222 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 20-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Set aside
• Section: 143(3)

Judgement Text

ITA NO.- 4089/DEL/2017. SHRI NIRBHAY KUMAR. PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO: 4089/DEL/2017 (ASSESSMENT YEAR: 2011-12) SHRI NIRBHAY KUMAR, NEW DELHI. VS ACIT, CIRCLE-1, NOIDA. PAN NO: AMUPK3724H APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. RAKHI VIMAL, SR. DR ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1, NOIDA, [LD. CIT(A) FOR SH ORT], DATED 27.01.2016, FOR ASSESSMENT YEAR (A.Y., FOR SHORT) 2011-12, ON TH E FOLLOWING GROUNDS: 1. THAT THE LEARNED CIT (A) HAS ERRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE THAT APPELLANT HAS FAILED TO PRODUCE THE COMPLETE CERTIFIED AND ATTESTED COPY OF ASSESSMENT ORDER PASSED U/S 143(3) OF THE I NCOME TAX ACT, 1961 WHILE FILING APPEAL IGNORING APPLICATION DATED 06.04.2017 CONTAINING REQUEST FOR ASSESSMENT ORDER U/S 143(3) OF THE INCO ME TAX ACT, 1961. ITA NO.- 4089/DEL/2017. SHRI NIRBHAY KUMAR. PAGE 2 OF 5 2. THAT THE LEARNED CIT (A) HAS ERRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE THAT APPELLANT HAS NEITHER APPEARED NOR ANY AP PLICATION FOR ADJOURNMENT FILED IGNORING THAT ADDRESS OF ASSESSEE HAS CHANGED FROM F-312, JALWAYU TOWER , SECTOR- 37, NOIDA TO F-613, JALWAYU TOWER, SECTOR -47, NOIDA DUE TO WHICH NO CORRESPONDENCE IS RECEIVED FROM DEPARTMENT AND NO A NY SUFFICIENT OPPORTUNITY HAS BEEN GIVEN TO ASSESSEE OF BEING HEARD THEREBY I GNORING THE PRINCIPLES OF NATURAL JUSTICE. 3. THAT THE LEARNED CIT (A) HAS ERRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE THAT NO GROUNDS OF APPEAL AND PRAYER HAS BEEN FILED BY ASSESSEE IGNORING THAT NO COMPLETE COPY OF ASSESSMENT ORDER U/S 143(3 ) OF THE INCOME TAX ACT, 1961 HAS BEEN RECEIVED BY THE ASSESSEE . 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER AN D MODIFY ANY OF THE GROUNDS DURING THE COURSE OF APPELLATE PROCEEDINGS. (B) ASSESSMENT ORDER DATED 31.03.2014 WAS PASSED UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHORT), IN WHICH TOT AL INCOME WAS ASSESSED AT RS. 1,05,44,362/- AS AGAINST RETURN INCOME OF RS. 12,71 ,952/-. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-1, NOIDA, THE LD. CIT(A) DISMISSED ASSESSEES APPEAL VIDE ORDER DATED 27.01. 2016. THE RELEVANT PORTION OF ORDER OF THE LD. CIT(A) IS REPRODUCED AS UNDER: 4. THE IMPUGNED ASSESSMENT ORDER WAS PASSED BY THE ID. A.O. U/S. 143(3) OF I.T. ACT, 1961 AFTER CONSIDERING THE EVIDENCE LED B Y THE APPELLANT. WHILE THE APPELLANT HAS EVERY RIGHT TO CONTEST THE FINDINGS O F THE ID. A.O. IN APPEAL WHICH LIES AS A MATTER OF RIGHT, THE ONUS IS ON THE APPELLANT TO LEAD EVIDENCE AND PROVE THAT THE FINDINGS ARRIVED AT BY ID. A.O. WAS INCORRECT. IN THE INSTANT CASE THE APPELLANT HAS NOT EVEN SUBMITTED THE STATEMENT OF FACTS. IT H AS ALSO NOT TAKEN AN LEGAL GROUND OR-ANY FACTUAL GROUND IN SUPPORT OF ITS CLAI MS. IT HAS SIMPLY NOTED AS GROUNDS OF APPEAL GROUNDS OF APPEAL - TO BE SUBMIT TED AT THE TIME OF HEARING'. WHITE REPEATED HEARING WERE GRANTED THE APPELLANT N EITHER' APPEARED NOR SUBMITTED ANY GROUND OF APPEAL. THE APPEAL MEMO SIG NED BY THE APPELLANT AND SUBMITTED THROUGH THE ID., COUNSEL IN WHOSE FAVOUR A POWER OF ATTORNEY WAS ENCLOSED BUT WITHOUT ANY ACCEPTANCE BY THE ID. COUN SEL DOES NOT CONTAIN ANY PRAYER EITHER. WITHOUT THERE BEING ANY GROUND OF APPEAL AND THERE BEING A NY ITA NO.- 4089/DEL/2017. SHRI NIRBHAY KUMAR. PAGE 3 OF 5 PRAYER THE APPEAL OF THE APPELLANT WILL HAVE NO FOR CE. A COPY OF FORM NO.35 AS FILED BY THE APPELLANT IS ANNEXED WITH THE PRESENT ORDER. 5. IN VIEW OF THESE MATERIAL FACTS NEITHER THE APP ELLANT HAS ANY GRIEVANCE AGAINST THE IMPUGNED ORDER NOR HAS IT ANY GROUND TO BE AGGRIEVED BY THE IMPEND ORDER. THE APPELLANT ALSO DOES NOT WANT ANY RELIEF AGAINST THE IMPUGNED ORDER. (B.1) THE ASSESSEE HAS FILED THIS PRESENT APPEAL IN INCOM E TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT) AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATED 27.01.2016 OF LD. CIT(A). IN THE GROUNDS OF APPEAL, IN THE PRESENT APPEAL BEF ORE US, IT HAS BEEN STATED THAT THE ASSESSEE HAD NOT RECEIVED THE ASSESSMENT ORDER UNDE R SECTION 143(3) OF I.T. ACT. MOREOVER, IT HAS BEEN STATED THAT THE ASSESSEES AD DRESS HAD CHANGED FROM F-312, JALWAYU TOWER, SECTOR-37, NOIDA TO F-613, JALWAYU TOWER, SE CTOR-47, NOIDA; DUE TO WHICH CORRESPONDENCE COULD NOT BE RECEIVED BY THE ASSESSE E. (C) ON PERUSAL OF GROUNDS OF APPEAL IN THE PRESENT APPE AL BEFORE US; AND THE IMPUGNED APPELLATE ORDER DATED 27.01.2016 OF THE LD. CIT(A), WE FIND THAT THE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(A) WAS DEFECTIVE IN AS MUCH AS NEITHER THE CERTIFIED COPY OF THE ASSESSMENT ORDER WAS FILED; NOR GROUNDS OF APPEAL W ERE FILED. HOWEVER, THERE WAS REASONABLE CAUSE FOR THIS AS THE ASSESSEE HAD NOT R ECEIVED THE ASSESSMENT ORDER. MOREOVER, DUE TO CHANGE OF ASSESSEES ADDRESS, THE NOTICES OF HEARING ISSUED BY LD. CIT(A) DID NOT REACH. IN VIEW OF THE FOREGOING; WE DIRECT THE ASSESSEE TO INTIMATE THE CORRECT PRESENT ADDRESS TO LD. CIT(A) AND TO THE ASSESSING OFFICER. IN THE INTEREST OF JUSTICE, AND SO THAT THE ASSESSEE GETS REASONABLE OPPORTUNITY BE FORE LD. CIT(A); WE SET ASIDE THE ITA NO.- 4089/DEL/2017. SHRI NIRBHAY KUMAR. PAGE 4 OF 5 IMPUGNED APPELLATE ORDER DATED 27.01.2016 OF LD. CI T(A) WITH THE DIRECTION TO PASS FRESH ORDER AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. (D) IN THE RESULT, APPEAL FILED BY ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4/12/2019. SD/- SD/- (H.S. SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 4/12/2019 POOJA/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.- 4089/DEL/2017. SHRI NIRBHAY KUMAR. PAGE 5 OF 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER