Shri Mahender Singh Yadav, New Delhi V. JCIT, New Delhi

ITA 409/DEL/2011

• Counselvise Citation: 40920114 RSA 2011
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Assessee Lawyers: ASHWANI TANEJA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E DELHI BEFORE SHRI A.D. JAIN AND SHRI K.G. BANSAL ITA NO. 409(DEL)/2011 ASSESSMENT YEAR: 2007-08 SHRI MAHENDER SINGH YADAV, JOINT C OMMISSIONER OF INCOME 126, K-1, KIRLOKRI, VS. TAX, RANGE-32, NEW DELHI. NEW DELHI. PAN: AAAPY3776D (APPELLANT) (RESPON DENT) APPELLANT BY : SHRI ASHWANI TANEJA, ADVOCAT E RESPONDENT BY: SH RI R.S. NEGI, SR. DR DATE OF HEARING : 08.11.2011 DATE OF PRONOUNCEMENT: 08.11.2011. ORDER PER K.G. BANSAL : AM IN THIS CASE, THE ASSESSEE HAS TAKEN UP 10 GROU NDS IN THE APPEAL FILED ON 27.01.2011. AS IT SHALL BE SEEN LATER, ONLY GROUND NO. 1 IS RELEVANT FOR OUR PURPOSE. THE GROUND IS TO THE EFFECT THAT THE LD. CIT(APPEALS) ERRED ON FACTS AND IN LAW IN PASSING THE EX-PARTE ORDE R AND NOT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE WHILE PAS SING THE IMPUGNED ORDER. HE HAS ALSO NOT CONSIDERED VARIOUS EVIDENCES F URNISHED BY THE ASSESSEE. ITA NO. 409(DEL)/2011 2 2. THE FACTS OF THE CASE ARE THAT THE RETURN WAS FILED ON 31.07.2007 DECLARING TOTAL INCOME OF RS. 19,94,298/-. ASSESSM ENT U/S 143(3) WAS COMPLETED ON 29.12.2009 AT TOTAL INCOME OF RS. 9 9,85,070/-. THE ASSESSEE MOVED AN APPEAL AGAINST THIS ORDER BEFORE THE C IT(APPEALS)-XXVII, NEW DELHI. THE LD. CIT(APPEALS) DISPOSED OFF THE AP PEAL ON 29.09.2010, EX- PARTE THE ASSESSEE, IN WHICH THE APPEAL WAS DISMI SSED. THE REASONS LEADING TO EX-PARTE ORDER HAVE BEEN MENTIONED AS UNDER :- IN THIS CASE NOTICE UNDER SECTION 250 WAS ISSU ED ON 22.1.2010 FIXING THE CASE FOR HEARING ON 9.2. 2010. THERE WAS NO COMPLIANCE. THEREAFTER, NOTICE WAS ISSUED ON 17.5.2010 FOR FIXING THE CASE FOR 13.7.2010. ON 13.7.2010, SHRI P.N. CHAWLA, ADVOCATE APPEARED BEFORE MY PR EDECESSOR AND FURNISHED SOME DETAILS. THE CASE WAS THEN RE-FIXED FOR HEARING ON 9.8.2010. THERE WAS NO COMPLIANCE. AGAIN NOTICE WAS ISSUED FOR 6.9.2010 WHICH TOO REMAINE D UNCOMPLIED WITH. THEREAFTER, ON 8.9.2010 ANOT HER NOTICE WAS ISSUED FIXING THE HEARING FOR 23.9.2010. APP ELLANT WAS ALSO INFORMED THAT IN CASE OF NON-COMPLIANCE THE MATTER WILL BE DECIDED EX-PARTE ON MERITS. THIS NOTICE HAS AL SO NOT BEEN COMPLIED WITH. ALL THE NOTICES HAVE BEEN ISSUED ON THE ADDRESS GIVEN IN FORM NO. 35. THE COUNSEL HAS ALSO APPEARED ON 13.7.2010, IT IS APPARENT THAT DESPITE RECEIPT OF NOTICES B Y THE APPELLANT THERE IS NO COMPLIANCE. AS ADEQUATE OPPORTUNITIES HAVE BEEN PROVIDED BY THIS OFFICE, THE MATTER IS NOW BEING DISPOSED OFF ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ITA NO. 409(DEL)/2011 3 3. IN THE COURSE OF HEARING BEFORE US, THE LIMITE D PRAYER MADE BY THE LD. COUNSEL FOR THE ASSESSEE WAS THAT THE MATTE R MAY BE RESTORED TO THE FILE OF THE AO FOR VERIFICATION OF THE FACTS AND DE CIDING VARIOUS MATTERS ON MERITS DE-NOVO. HE ALSO FILED AN AFFIDAVIT DAT ED 07.11.2011 FROM THE ASSESSEE, IN WHICH IT IS DEPOSED THAT THE LD. C IT(APPEALS) PASSED THE ORDER ON 29.09.2010 DISMISSING THE APPEAL EX-PAR TE ON THE GROUND THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE ON 09.0 8.2010, 06.09.2010 AND 23.09.2010. THE NOTICES FOR HEARING ON THESE DA TES WERE NOT RECEIVED BY THE ASSESSEE. HE HAD INSTRUCTED HIS COUNSEL SHR I P.N. CHAWLA TO APPEAR BEFORE THE CIT(APPEALS) AND ACCORDING TO HIS KNO WLEDGE APPEARANCE WAS MADE ON 13.07.2010. THEREAFTER, NO FURTHER NOTIC E WAS RECEIVED. ACCORDINGLY, A REQUEST HAS BEEN MADE THAT THE MA TTER MAY BE RESTORED TO THE FILE OF THE AO OR THE LD. CIT(APPEALS) AND HE SHALL MAKE FULL COMPLIANCE FROM HIS SIDE TO THE EXTENT POSSIBLE. ON THE BASIS OF THE AFFIDAVIT, THE CASE OF THE LD. COUNSEL IS THAT IT WOULD BE PREFERABLE TO RESTORE THE MATTER TO THE FILE OF THE AO AS FACT S ARE YET TO BE FULLY VERIFIED. FOR THE SAKE OF READY REFERENCE, THE RE LEVANT PORTIONS OF THE AFFIDAVIT ARE REPRODUCED OVERLEAF:- ITA NO. 409(DEL)/2011 4 4. THAT LD. CIT(A) PASSED THE ORDER DATED 29.09.201 0 DISMISSING MY APPEAL EX-PARTE ON THE GROUND THAT THERE WAS NO C OMPLIANCE ON THE PART OF THE ASSESSEE ON THE VARIOUS DATES, I.E., 09.08.2010, 06.09.2010 & 23.09.2010. 5. THAT AGAINST THE ORDER OF LD. CIT(A), I HAVE FILED AN APPEAL BEFORE HONBLE INCOME TAX APPELLATE TRIBUNAL ON 24.01.2 011. 6. THAT I HAVE NOT RECEIVED ANY NOTICE FIXING THE HEARING FOR 09.08.2010, 06.09.2010 & 23.09.2010. 7. THAT I HAD ENGAGED SHRI P.N. CHAWLA (ADVOCATE) TO APPEAR BEFORE LD. CIT(A) & AS PER MY KNOWLEDGE, SHRI P.N. CHAWL A DID APPEAR BEFORE LD. CIT(A) ON 13.07.2010 & THEREAFTER HE ALSO DID NOT RECEIVE ANY OTHER NOTICE FOR ANY OTHER DATE. 8. THAT THE AFORESAID NON-COMPLIANCE, IF ANY, WAS I NADVERTENT & BEYOND MY KNOWLEDGE AND CONTROL. 3.1 THE LD. SENIOR DR HAD NO OBJECTION TO SETTI NG ASIDE THE MATTER TO THE FILE OF THE AO. EVEN ACCORDING TO HIM, IT W OULD BE PREFERABLE TO RESTORE THE MATTER TO THE FILE OF THE AO IF TRIBU NAL DECIDES TO REMAND THE MATTER. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IN VIEW OF THE AFFIDAVIT FILED BY THE ASSESSEE, WE ARE OF THE VIEW THAT ALL THE GROUNDS REQUIRE FRESH ADJUDI CATION IN THE INTEREST OF ITA NO. 409(DEL)/2011 5 JUSTICE. AS BOTH THE PARTIES HAVE SUBMITTED THA T IT WOULD BE PREFERABLE TO RESTORE THE MATTER TO THE FILE OF THE AO, IT IS OR DERED ACCORDINGLY. 5. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. SD/- SD/- (A.D. JAIN) (K.G.BANS AL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- 1. SHRI MAHENDER SINGH YADAV, NEW DELHI. 2. JOINT CIT, RANGE-32, NEW DELHI. 3. CIT 4. CIT(A) 5. THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.