Veer Singh @ Bir Singh, Faridabad V. ITO, Faridabad

ITA 4112/DEL/2014

• Counselvise Citation: 411220114 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 31-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 22-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK AGGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

ITA NO S.4111 - 4112/D EL/ 2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO S . 4 111 & 4112/ DEL/20 1 4 A.Y. : 20 03 - 04 VEER SINGH @ BIR SINGH S/O LT. SH. NIYADAR SINGH VILLAGE ANKHIR FARIDABAD 121001 (HARYANA) (PAN: BQXPS7362B) VS . INCOME TAX OFFICER, WARD 2(4), F A R I D A B A D (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VIVEK AGGARWAL, ADV. DEPARTMENT BY : SH. SUJIT KUMAR, SR. DR DATE OF HEARING: 31 . 0 8 .201 5 DATE OF ORDER : 0 1 . 0 9 .201 5 ORDER PER H.S. SIDHU : JM TH ESE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE O RDER DATED 1 2 . 5 . 20 1 4 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 2 , FARIDABAD FOR THE ASSTT. YEAR 20 0 3 - 04 . SINCE THE ISSUE INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THE SAME ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. ITA NO S.4111 - 4112/D EL/ 2014 2 3. AT THE TIME OF HEARING SH. VIVEK AGGARWAL, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE AO AS WELL AS LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE THEM AND DECIDE THE ISSUES IN DISPUTE AGAINST THE ASSESSEE WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVI NG OPPORTUNITY TO THE ASSESSEE. HE UNDERTAKES TO COOPERATE IN T HE APPELLATE PROCEEDINGS AND WILL NOT SEEK ANY UNNECESSARY ADJOURNMENT. 4. LD. DR STRONGLY OPPOSED THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE AND STATED THAT ASSESSEE REMAINED NON - COOPE RATIVE BEFORE THE AUTHORITIES BELOW, THEREFORE, THERE IS NO NEED TO GRANT MORE AND MORE OPPORTUNITY TO THE ASSESSEE. HE FURTHER STATED THAT THERE IS A DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) AND THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR C ONDONATION OF DELAY. THEREFORE, THE LD. CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH ME, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES , I AM OF THE VIEW THAT THE AO HAS COMPLETED THE ASSESSMENT EXPARTE U/S. 144/147 OF THE INCOME TAX ACT, 1961 ASSESSING THE TOTAL ITA NO S.4111 - 4112/D EL/ 2014 3 INCOME OF THE ASSESSEE AT RS. 1,76, 659, AGAINST WHICH THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) BY TAKING VARIOUS GROUNDS. BUT, I FIND THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) IS TIME BARRED BY LIMITATION AND ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY ALONGWITH EVIDENCE AND THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BEING TIME BA RRED. THE RELEVANT PARAGRAPHS OF THE LD. CIT(A) S ORDER I.E. PARA NO. 3 AND 3.1 AT PAGE 3 TO 4 ARE REPRODUCED HEREUNDER: - 3. BEFORE DISCUSSING VARIOUS GROUNDS OF APPEAL, LET US EXAMINE THE ISSUE OF BELATED FILING OF APPEAL. ON A PERUSAL OF EX - PARTE ORDER AND FORM NO. 35 CONCERNING APPEALS TO THE COMMISSIONER OF INCOME TAX (APPEALS), IT WAS REVEALED THAT WHILE THE EX - PARTE ORDER WAS PASSED ON 15.11.2010, THE APPELLANT FILED THE APPEAL AGAINST THE SAID ORDER ON 26.04.2011 . IN FORM NO. 35, THE APPELLANT HAS LEFT COLUMN AGAINST DATE OF SERVICE OF RELEVANT NOTICE OF DEMAND BLANK. AS PER ITNS 51 DATED 10 - 05 - 2011 RECEIVED FRO M THE AO, THE APPEAL WAS FILED LATE. THUS THESE FACTS MAKE IT AMPLY CLEAR THAT THE APPEAL AS FILED BEYOND THE STATUTORY 30 DAYS' LIMITS LAID DOWN IN SECTION 249(2) OF THE INCOME TAX ACT. 3.1 IN ORDER TO GET THE APPELLANT'S VERSION AS TO WHY THE APPEAL WAS LED LATE AND TO CONSIDER CONDONATION OF D ELAY, A NOTICE U/S 250 WAS ISSUED ON 16.04.2014 FIXING THE CASE FOR 0 6.05.2014 AT 11.05 AM. SINCE THE A PPELLANT DID NOT COMPLY WITH THE SAID NOTICE, IT IS HELD THAT THE APPELLANT HAS N OTHING TO STATE AS TO WHY CONDONATION ITA NO S.4111 - 4112/D EL/ 2014 4 OF DELAY SHOULD BE GRANTED TO HIM. M OREOVER, THE APPELLANT FILED A BELATED APPEAL AGAINST THE EX - PARTE ORDER U/S 44/147 OF TH E INCOME TAX ACT WITHOUT GIVING ANY SUFFICIENT CAUSE FOR THE SA ID DELAY. LOOKING INTO THE FACTS OF THE CASE IN TOTALITY, I HOLD THAT THE AP PELLANT HAD FILED THE APPEAL LATE IN TERMS OF PROVISIONS OF SECTION 249(2) OF THE INCOME TAX ACT WITHOUT GIVING ANY R EASONS FOR THE SAID DELAY. KEEPING ALL THESE FACTS IN MIND, THE DELAY IN FILING IS NOT CONDONED AND THE APPEAL IS TO BE HELD TO BE VALID. AS A RESULT, THE APPEAL FILED BY THE APPELLANT IS D ISMISSED. 6. KEEPING IN VIEW OF THE AFORESAID IMPUGNED ORDER, I A M OF THE VIEW THAT THE LD. CIT(A) HAS ISSUED NOTICE TO THE ASSESSEE ON 16.4.2014 FIXING THE CASE FOR 6.5.2014. HE HAS NOT GIVEN ANY SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM BEFORE HIM AND FIL ED ANY APPLICATION FOR CONDONATION OF DELAY ALONGWITH EVIDENCE. LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AGAINST THE ASSESSEE WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND ALSO NOT PERMISSIBLE UNDER THE LAW. NO DOUBT THAT THE ASSESSEE HAS REMAINED NON - COOPERATIVE BEFORE THE AO AS WELL AS LD. CIT(A), BUT IN THE INTEREST OF JUSTICE, ASSESSEE IS ENTITLED FOR SUFFICIENT OPPORTUNITY TO SUBSTANTIATE HIS CLAIM BEFORE THE RE VENUE AUTHORIT IES WHICH HAS NOT BEEN GIVEN TO HIM. IN MY CONSIDERED VIEW THE IMPUGNED ORDER IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND NOT SUSTAINABLE IN THE EYES OF LAW, THEREFORE, I CANCEL THE SAME WITH THE DIRECTIONS TO ADJUDICATE THE APPEAL OF ASSESSEE , FIRSTLY ON CONDONATION ITA NO S.4111 - 4112/D EL/ 2014 5 OF DELAY AND, IF HE CONVINCED WITH THE CONDONATION OF DELAY, THEN DECIDE THE ISSUES ON MERITS , AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . AS A RESULT, BOTH THE A PPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1 .0 9 .2015 . S D / - [ H.S. SIDHU ] JUDICIAL MEMBER SR BHATNAGAR DATE: 0 1 . 0 9 .2015 COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES