ITO, New Delhi V. M/s. Shree Bankey Bihari Textiles (P) Ltd., Delhi

ITA 4101/DEL/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6185 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 04-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 06-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIMA BERNWAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI G.D. AGR A WAL , VICE PRESIDENT , AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA NO. 4 1 0 1 /DEL /20 1 0 ASSESSMENT YEAR : 200 7 - 0 8 THE I.T .O VS. SHREE BANKEY BIHARI TEXTILES (P) LTD WARD 8 ( 3 ) 1074, NAYA KATRA, CHANDI CHOWK NEW DELHI DELHI 110 006 PAN : AABCS 5942 H ITA NO. 3743/DEL /2010 ASSESSMENT YEAR: 2007 - 08 SHREE BANKEY BIHARI TEXTILES (P) LTD VS. THE I.T.O 1074, NAYA KATRA, CHANDI CHOWK WARD 8(3) DELHI NEW DELHI PAN : AABCS 5942 H [APPELLANT] [RESPONDENT] DATE OF HEARING : 04 . 0 2 . 201 6 DATE OF PRONOUNCEMENT : 31 . 0 3 .2016 ASSESSEE BY : NONE DEPARTM ENT BY : SHRI ANIMA BERNWAL, SR. DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER TH ESE CROS S APPEAL S FILED BY THE REVENUE AND ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - XI , NEW DELHI DATED 0 7 /0 6 /20 1 0 FOR A.Y 200 7 - 0 8 . 2 2 2. THE ASSESSEE HAS FIL E D ADJOURNMENT APPLICATION BUT AT THE TIME OF HEARING WHEN THE APPEAL WAS CALLED NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED. THE LD. DR CONTENDED THAT THE APPEAL OF THE ASSESSEE SHOULD BE DISCUSSED FOR NON PROSECUTION. ON ABOVE NOTED SITUATION, WE ARE OF THE VIEW THAT THE ASSESSEE HAS FILED APPLICATION SEEKING ADJOURNMENT. HOWEVER, NONE APPEARED WHEN THE CASE CAME UP BEFORE US FOR HEARING BUT IN THIS SITUATION, THE CASE CANNOT BE DISMISSED ON ACCOUNT OF NON PROSECUTION. HENCE, ON PERUSAL OF RECO RD, WE FIND THAT THE APPEAL OF THE ASSESSEE MAY BE DISPOSED OFF AFTER HEARING THE LD. DR ON BEHALF OF THE RESPONDENT REVENUE. THEREFORE, WE PROCEEDED TO ADJUDICATE THE APPEAL AFTER HEARING THE LD. DR. HENCE THE APPLICATION FOR ADJOURNMENT FILED BY THE ASS ESSEE IS DISMISSED. ITA NO. 3743/DEL /2010 [A.Y 2007 - 08] SHREE BANKEY BIHARI TEXTILES (P) LTD VS. THE I.T.O GROUND NOS 1 AND 2 3 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. THE LD. DR SUPPORTED THE ACTION OF THE AO AND CONCLUSION OF THE LD. CIT(A) AND CONTENDED THAT TH E 3 3 AUTHORITIES BELOW PROPERTY GRANTED OPPORTUNITY OF BEING HEARD TO THE ASSESSEE THUS THERE IS NO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE FIRST APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). HE FURTHER SUBMITTED THAT WHEN THE ASSESSEE IS NOT COOPERATING WITH THE PROCEEDINGS THEN THERE IS NO OPTION FOR THE AO AND LD. CIT(A) TO PROCEED U/S 144 OF THE A C T TO DECIDE THE CASES WITHIN THE PRESCRIBE D TIME LIMIT. THE LD. DR ALSO POINTED OUT THAT THE LD. CIT(A) IN PARAS 2 TO 2.3 CATEGORICALLY DEALT WITH THE OBJECTION OF THE ASSESSEE AND HELD THAT THE LAW ASSISTS THE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THE LD. DR VEHEMENTLY ARGUED THAT THE LD. CIT(A) ALSO PROVIDED DUE OPPORTUNITY OF HEARING O F THE ASSESSEE. 4 . ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSIONS AND PERUSAL OF THE RELEVANT MATERIAL ON RECORD, INTER ALIA, ASSESSMENT ORDER AND THE IMPUGNED FIRST APPELLATE ORDER, WE NOTE THAT AT BOTH T HE STAGES I.E DURING THE ASSESSMENT AND FIRST APPELLAT E PROCEEDINGS, THE ORDERS HAVE B EEN PASSED EX PARTE. FROM THE TABLE MENTIONED IN PARA 1 OF THE ASSESSMENT ORDER IT IS APPARENT THAT THE NOTICES FO R NEXT HEARING HAS ISSUED BY FI XING A DATE OF 3 TO 10 D AYS EXPECTING THE COMPLIANCE WHICH IS NOT A SUFFICIENT 4 4 TIME FOR COMPLIANCE HENCE THE EX PARTE ORDER PASSED U/S 144 OF THE ACT IS VIOLATIVE OF PRINCIPL E S OF NATURAL JUSTICE WHICH CANNOT BE SUSTAINED AND THUS CONCLUSION OF THE LD. CIT (A) IS NOT JUSTIFIED AND CORRECT. 5 . IN VIEW OF THE FOREGOING DISCUSS I ON WE REACH TO THE CONCLUSION THAT THERE WAS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BY THE AO HENCE THE IMPUGNED ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD. CIT(A) IS NOT LEGALL Y SUSTAINABLE A ND WE DEMOLISH THE SAME 6 . CONSEQUENTLY, THE ENTIRE ASSESSMENT IS RESTORED TO THE FILE OF TH E AO FOR A FRESH DE NOVO ADJUDIC AT I ON AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND WITHOUT BEING PREJUDICED FROM THE EARLIER ASSES SMENT ORDER AS WELL AS THE IMPUGNED FIRST APPELLATE ORDER OF THE LD. CIT(A). ACCORDINGLY, GROUND NOS. 1 AND 2 OF THE ASSESSEE ARE ALLOWED IN THE MANNER AS INDICATED ABOVE. ITA NO. 4101/DEL /2010 [A.Y 2007 - 08] THE I.T.O VS. SHREE BANKEY BIHARI TEXTILES (P) LTD 7. BY THE EARLIER PART OF THIS ORDER, WE HAVE RESTORED THE ENTIRE ASSESSMENT TO THE FILE OF HT AO FOR AFRESH DE NOVO 5 5 ASSESSMENT HOLDING THAT THE ASSESSEE WAS NOT PROVIDED DUE OPPORTUNITY OF BEING HEARD AS THE IMPUGNED ASSESSMENT HAS BEEN FRAMED U/S 144 OF THE ACT EXPART E . THEREFORE, IN THE INTEREST OF JUSTICE, WE ALSO FIND IT APPROPRIATE TO RESTORE THE ISSUE OF UNEXPLAINED UNSECURED LOANS IS ALSO RESTORED T THE FILE OF THE AO FOR FR E SH A DJUDICATION AS PER DIRECTIONS GIVEN HEREINABOVE IN THIS ORDER. 8. CONSEQUENTLY , THE SOLE GROUND OF THE REVENUE IS DEEMED TO BE A L LOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE, AS WELL AS THAT OF THE REVENUE, IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 1 .0 3 .2016. SD/ - SD/ - ( G.D. AGARWAL ) (C.M. GARG) VICE PRESIDENT JUDICIAL MEMBER DATED: 3 1 S T MARCH , 2016. VL/ 6 6 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI