M/s AEZ Infratech P. Ltd., New Delhi V. DCIT, New Delhi

ITA 4096/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5771 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NOS.- 4095 & 4096/DEL/2015 (ASSESSMENT YEARS 2007-08 & 2008-09) M/S AEZ INFRATECH P. LTD. C/O BGJC & ASSOCIATES, RAJ TOWER, G-1, ALAKHNANDA COMMUNITY CENTRE, NEW DELHI 49 (PAN: DELA13172F) (APPELLANT) VS DCIT, CIRCLE 49(1), NEW DELHI (RESPONDENT) APPELLANT BY SH. RAJESHWAR PRASAD PAINULY, CA RESPONDENT BY SMT. NAINA SOIN KAPIL, SR. DR. ORDER PER H.S. SIDHU, JM THESE APPEALS ARE FILED BY THE ASSESSEE EMANATE OUT OF THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, NEW DELHI DATED 20.3.2015 PERTAINING TO ASSESSMENT YEAR 2007-08 TO 2008-09. SINCE THE ISSUE S INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING CONSOLIDA TED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY FIRST DEALING WITH ASSESSEES APPEAL NO. 4095/DEL/2015 (AY 2007-08) A ND THE RESULT THEREOF WILL APPLY MUTATIS MUTANDIS TO OTHER APPEAL NO. 4096/DEL/2015 (AY 2008-09). THE GROUNDS RAISED IN ASSESSMENT YEAR 2007-08 READ AS UNDER:- 2 1. THAT THE LD. CIT(A)-13, NEW DELHI HAS FAILED TO PA SS A SPEAKING ORDER. 2. THAT THE LD. CIT(A)-13, NEW DELHI HAS ERRED ON FACT S AND IN LAW IN SUSTAINING THE PENALTY DEMAND RS. 20,53,272/- WHEREIN RS. 8,08,632/- BELONGS TO FY 2006-07 (AY 2007-08) AND RS. 12,44,640/- BELONGS TO FY 2007-08 (AY 2008-09). THE PENALTY ORDER HAS BEEN IMPOSED BY LD. DCIT, CIRCLE 49(1), NEW DELHI WITHOU T MAKING THE ASSESSMENT U/S. 201/201(1A) OF THE INCOME TAX ACT, 1961 WHEREAS, BEFORE THE IMPOSITION OF PENALTY U/S. 271(1)(C) IT IS MANDATORY THAT THE ASSESSMENT PROCEEDINGS HAS BEEN COMPLETED UNDER SECTION 201/201(1A) OF THE INCOME TAX ACT, 1961. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER OF THE LD. CIT(A), APPEALS-13, NEW DELHI IS ERRONEOUS, BOTH IN LAW AND ON THE FACTS. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODI FY WITHDRAW, AMEND, SUBSTITUTE ANY GROUND(S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT( A) HAS FAILED TO PASS A SPEAKING ORDER AND FURTHER SUBMITT ED THAT LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN SUSTAINING THE PENALTY DEMAND RS. 20,53,272/- WHEREIN RS. 8,08,632/- BELON GS TO FY 2006-07 (AY 2007-08) AND RS. 12,44,640/- BELONGS TO FY 2007-08 (AY 2008-09). IT WAS FURTHER SUBMITTED THA T THE PENALTY ORDER HAS BEEN IMPOSED BY LD. DCIT, CIRCLE 49(1), NEW 3 DELHI WITHOUT MAKING THE ASSESSMENT U/S. 201/201(1A ) OF THE INCOME TAX ACT, 1961 WHEREAS, BEFORE THE IMPOSITION OF PENALTY U/S. 271(1)(C) IT IS MANDATORY THAT THE ASS ESSMENT PROCEEDINGS HAS BEEN COMPLETED UNDER SECTION 201/20 1(1A) OF THE INCOME TAX ACT, 1961. IN VIEW OF ABOVE, HE REQ UESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FIL E OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRES H, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD AND PAS S A SPEAKING ORDER. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER, WE FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE ASSESSEE THAT LD. CIT(A) DID NOT DEAL THE ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER BY DISMISSING THE APPEAL OF THE ASSESSEE BY UPHOLDING THE ACTION OF THE AO. HOWEVER, IT IS A SETTLED LAW THAT EVEN AN ADMINISTR ATIVE ORDER HAS TO BE SPEAKING ONE. IN THIS REGARD, WE DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SAHARA IND IA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT H AS HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. 5.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENT, AS AFORESAID, WE REMIT 4 BACK THE ISSUES IN DISPUTE TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO DISCUSS EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH BY PASSING A SPEAKING ORDER, AFTER CONSIDERING A LL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASS ESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . HOWEVER, THE ASSESSEE IS DIRECTED THROUGH HIS COUNS EL TO APPEAR BEFORE THE LD. CIT(A) ON 10.07.2019 AT 10.00 AM FOR HEARING AND TO FILE ALL THE EVIDENCES/DOCUMENTS ETC . BEFORE HIM TO SUBSTANTIATE ITS CASE AND DID NOT TAKE ANY UNNEC ESSARY ADJOURNMENT IN THE PROCEEDINGS. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE STAND ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 10/05/2019. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 10/05/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR