M/s. DBM Marketing India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 4182/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5141 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY A NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.4182/DEL/2016 ASSESSMENT YEAR: 2012-13 DBM MARKETING INDIA PVT. LTD., K.NO. 203, PLOT NO 5, 1 ST FLOOR, GOVIND MOHALLA EXTN., HAIDERPUR, NEW DELHI 110088 AACCD5472C VS DCIT, CIRCLE-7(1), NEW DELHI APPLICANT RESPONDENT ASSESSEE BY MR. ASHU GOEL, CA REVENUE BY MR. ABHISHEK KUMAR, SR. DR ORDER PER NARASIMHA K. CHARY, JM AGGRIEVED BY THE ORDER DATED 17/12/2015, IN APPEAL NO. 334/2012-13 BY THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS)-3, DELHI (LD. CIT(A)), ASSESSEE PREFERRED THIS APPEA L. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY TRADING IN ELECTRONIC GOODS, PACKED FRUIT JUICES ETC. FOR THE ASSESSMENT YEAR 2012- 13 THEY HAVE FILED THEIR RETURN OF INCOME ON 29/9/2 012 DECLARING AN INCOME OF RS. 58,24,260/-. LEARNED ASSESSING OFFICE R, HOWEVER, BY ORDER DATED 25/2/2015 ASSESSED THE INCOME OF THE AS SESSEE AT RS. DATE OF HEARING 13.05.2019 DATE OF PRONOUNCEMENT 13.05.2019 2 89,63,070/-BY MAKING ADDITION OF RS. 16,38,809/- ON ACCOUNT OF THE NET PROFIT RATIO AND A SUM OF RS. 15,00,000/-UNDER SECT ION 68 OF THE ACT. 3. APPEAL PREFERRED BY THE ASSESSEE WAS DISMISSED B Y THE LD. CIT(A) ON THE GROUND THAT THE ASSESSEE DID NOT ENTER APPEA RANCE BEFORE HIM IN SPITE OF ISSUANCE OF NOTICES AND THERE WAS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE WAS INTERESTED IN PURSUING THE AP PELLATE PROCEEDINGS. HENCE THE ASSESSEE PREFERRED THIS APPEAL. 4. AT THE OUTSET, IT IS THE ARGUMENT OF THE LD. AR THAT NO NOTICE WAS SERVED ON THE ASSESSEE IN THE APPEAL BEFORE THE LD. CIT(A) AND THAT IS THE REASON WHY THE ASSESSEE COULD NOT ENTER ANY APPEARA NCE BEFORE THE LD. CIT(A). HE FURTHER SUBMITTED THAT THE LD. CIT(A) DI D NOT ADVERT TO THE MERITS OF THE CASE AND DISMISSED THE APPEAL IN LIMI NE. HE THEREFORE PRAYED THAT AN OPPORTUNITY MAY BE GRANTED TO THE AS SESSEE TO PUT FORTH THEIR CASE BEFORE THE LD. CIT(A). 5. PER CONTRA IT IS THE ARGUMENT OF THE LD. DR THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE BY THE LD. CIT(A) AS COULD BE SEEN FROM THE IMPUGNED ORDER AND NOTICES DATED 6/08 /2015, 7/9/2015, 7/10/2015 AND TWO REMINDERS THEREAFTER WERE ISSUED BUT IN VAIN. HE THEREFORE SUBMITTED THAT IF THE ASSESSEE DOES NOT C OOPERATE WITH THE AUTHORITIES FOR THE DISPOSAL OF THE MATTER ON MERIT S, NOTHING IS LEFT AT THE DISPOSAL OF THE LD. CIT(A), EXCEPT TO PROCEED EX PA RTE. 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE ON EITHER SIDE. THE IMPUGNED ORDER READS THAT THE NOTICES WERE ISSUED, BUT THERE IS NO FINDING AS TO WHETHER THEY WERE SERVED ON THE ASSESSEE OR NOT. HAVING REGARD TO THE COMMON COURSE OF NATURAL EVENTS, 3 HUMAN CONDUCT AND PUBLIC AND PRIVATE BUSINESS IN RE LATION TO THE CONDUCT OF THE ASSESSEE IN THIS MATTER, WE ARE OF THE CONSI DERED OPINION THAT IF THE ASSESSEE IS SERVED WITH NOTICE, THEY DO NOT STAND T O GAIN BY NOT PARTICIPATING IN THE FIRST APPELLATE PROCEEDING. 7. WE, THEREFORE, DO NOT FIND ANYTHING IMPROBABLEOR REASON TO SUSPECT IN THE CONDUCT OF THE ASSESSEE OR NOT TO BE LIEVE THEIR VERSION THAT NO NOTICE WAS SERVED ON THEM. FURTHER, THE HIGHEST THAT WOULD HAPPEN BY AFFORDING AN OPPORTUNITY TO THE ASSESSEE TO PUT FOR TH THEIR CASE BEFORE THE LD. CIT(A), IS THAT A CAUSE COULD BE DECIDED ON MER ITS WHICH IS ALWAYS IN THE INTEREST OF JUSTICE. WHEN THE TECHNICAL CONS IDERATIONS ARE PITTED AGAINST THE POSSIBILITY OF DELIVERY OF JUSTICE, IT IS THE SETTLED PRINCIPLE OF LAW THAT THE FORMER MUST GIVE WAY TO THE LETTER. 8. WITH THIS VIEW OF THE MATTER, WE FIND THAT THIS IS A FIT CASE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER TO T HE FILE OF THE LD. CIT(A) FOR DISPOSAL AFRESH AFTER AFFORDING AN OPPOR TUNITY TO THE ASSESSEE OF BEING HEARD. WE MAKE IT AMPLY CLEAR THAT IT WOUL D BE A LAST OPPORTUNITY TO THE ASSESSEE TO GET THE APPEAL DISPO SED OF ON MERITS BEFORE THE LD. CIT(A). WE ORDER ACCORDINGLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY, 2019. SD/- SD/- (R.K. PANDA) (K. NARASIMHA CHARY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH MAY, 2019 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON DRAFT PLACED BEFORE AUTHOR DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON DATE OF UPLOADING ORDER ON THE WEBSITE FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.