Sangeeta Mandal , Noida UP V. ITO ward 61(3), New Delhi

ITA 4234/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2844 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 09-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 69C; 133(6); 69A; 20

Judgement Text

1 ITA NOS. 4030 & 4234/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT ME MBER A N D MS. SUCHITRA KAMBLE, JUD ICIAL MEMBER I.T.A. NOS. 4030 AND 4234/DEL/2019 ASSESSMENT YEARS : 2010-11 AND 2015-16 (THROUGH VIDEO CON FERENCING) MS. SANGEETA MANDAL, A9, SECTOR: 9, F. M. HOUSE, NOIDA201 301 (UTTAR PRADESH) PAN: AAPPM0947H (APPELLANT) VS ITO , WARD : 61 (3) NEW DELHI. (RESPONDENT) O R D E R PER SUCHITRA KAMBLE, JM : THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORDERS BOTH DATED 24/03/2019 PASSED BY CIT (APPEALS)20, N EW DELHI, FOR ASSESSMENT YEARS 2010-11 AND 2015-16. THESE WERE H EARD TOGETHER AND ARE BEING DISPOSED OFF, FOR THE SAKE OF CONVENIENCE, BY THIS CONSOLIDATED ORDER. 2.1 THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2010 -11 ARE AS UNDER:- 1. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING EX-PARTE ORDER FRAMED BY ASSESS ING OFFICER, WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD, A MUST IN LA W, AS SETTLED BY VARIOUS JUDICIAL FORUMS FROM TIME TO TIME, HENCE THE EX- PARTE ORDER SO PASSED IN FURTHERANCE OF SUCH VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IS ARBITR ARY, UNJUST AND BAD IN LAW. APPELLANT BY SHRI DEEPAK MALIK, ADV.; RESPONDENT BY SHRI VIPUL KASHYAP, SR.D.R. DATE OF HEARING 19.11.2020 DATE OF PRONOUNCEMENT 25.11.2020 2 ITA NOS. 4030 & 4234/DEL/2019 2. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN SUSTAINING THE ORDER FRAMED BY THE ASSESSI NG OFFICER WITHOUT SERVING NOTICE OF HEARING, A MUST IN LAW , THEREFORE, THE EX-PARTE ORDER SO FRAMED IN FURTHERANCE THERETO, ALLEGING NON- COMPLIANCE THEREOF IS ARBITR ARY, UNJUST AND BAD IN LAW. 3. THAT IN VIEW OF THE FACT AND CIRCUMSTANCES OF THE C ASE AND UNDER THE LAW THE LD. CIT ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESS ING OFFICER OF RS. 17,91,327/- U/S 69C OF THE ACT ON THE BASIS OF INFORMATION GATH ERED ON THE BACK OF APPELLANT U/S 133(6) OF THE ACT DIRECTLY FROM AMERICAN EXPRESS BA NKING CORPORATION WITHOUT CONTRADICTING THE SAME AND PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND THEREFORE THE ASSESSMENT SO FRAMED IN FURTHERAN CE THEREOF IS ARBITRARY , UNJUST AND BAD IN LAW. 4. THAT IN VIEW OF THE FACT AND CIRCUMSTANCES OF THE C ASE AND UNDER THE LAW THE LD. CIT ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESS ING OFFICER OF RS. 2,05,96,307/- U/S 69A OF THE ACT ON THE BASIS OF INFORMATION GATH ERED ON THE BACK OF APPELLANT U/S 133(6) OF THE ACT DIRECTLY FROM STANDARD CHARTERED BANK AND HSBC BANK WITHOUT CONTRADICTING THE SAME AND PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND THEREFORE THE ASSESSMENT SO FRAMED IN FURTHERAN CE THEREOF IS ARBITRARY , UNJUST AND BAD IN LAW 5. THAT THE APPELLANT CRAVE TO ADD, AMEND OR DELETE AN Y GROUND OF APPEAL AT THE TIME OF HEARING. 2.2 THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2015 -16 ARE AS UNDER:- 1. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER FRAMED BY ASSESSING O FFICER, WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD, A MUST IN LA W, AS SETTLED BY VARIOUS JUDICIAL FORUMS FROM TIME TO TIME, HENCE THE EX- PARTE ORDER SO PASSED IN FURTHERANCE OF SUCH VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IS A RBITRARY, UNJUST AND BAD IN LAW. 2. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN SUSTAINING THE ORDER FRAMED BY THE ASSESSI NG OFFICER WITHOUT SERVING NOTICE OF HEARING, A MUST IN LAW , THEREFORE, THE E X-PARTE ORDER SO FRAMED IN FURTHERANCE THERETO, ALLEGING NON- COMPLIANCE THERE OF IS ARBITRARY, UNJUST AND BAD IN LAW. 3. THAT IN VIEW OF THE FACT AND CIRCUMSTANCES OF THE C ASE AND UNDER THE LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 51,07,963/- U/S 23(L)(A) OF THE ACT AS NOTIONAL REN T OF PROPERTY AT LONDON WITHOUT CONTRADICTING THE SAME AND PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND THEREFORE THE ASSESSMENT SO FRAMED IN FURTHERAN CE THEREOF IS ARBITRARY , UNJUST AND BAD IN LAW. 3 ITA NOS. 4030 & 4234/DEL/2019 4. THAT IN VIEW OF THE FACT AND CIRCUMSTANCES OF THE C ASE AND UNDER THE LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 54,76,870/- U/S 56 OF THE ACT WITHOUT CONTRADICTING THE SAME AND PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND THE REFORE THE ASSESSMENT SO FRAMED IN FURTHERANCE THEREOF IS ARBITRARY , UNJUST AND BAD IN LAW 5. THAT THE APPELLANT CRAVE TO ADD, AMEND OR DELETE AN Y GROUND OF APPEAL AT THE TIME OF HEARING. 3. THE ASSESSING OFFICER PASSED ASSESSMENT ORDER DA TED 26.12.2017 THEREBY ASSESSING THE TOTAL INCOME AT RS.2,23,87,650/- IN A .Y. 2010-11. THE ASSESSING OFFICER PASSED ASSESSMENT ORDER DATED 30.12.2017 TH EREBY ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,13,59,960/- FOR A.Y . 2015-16. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT (APPEALS). THE CIT (A) DISMISSED THE APPEA L OF THE ASSESSEE. 5. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE CIT (APPEALS) HAS NOT GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO REPRESENT HIS CASE. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT (APPEALS). 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE CIT (APPE ALS) HAS NOT GIVEN ANY CATEGORICAL FINDING ON MERITS OF THE CASE AND ALSO DID NOT GIVE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE CIT (APPEALS) WAS NOT RIGHT IN DISMISSING THE APPEALS OF THE ASSESSEE WIT HOUT GIVING PROPER OPPORTUNITY OF HEARING. HENCE, WE ARE REMANDING BA CK THE ENTIRE ISSUE TO THE FILE OF THE CIT (APPEALS) TO BE DECIDED ON MERITS. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN AN OPPORTUNITY OF HEARING BY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 4 ITA NOS. 4030 & 4234/DEL/2019 WE FURTHER DIRECT THE ASSESSEE TO CO-OPERATE THE RE VENUE AUTHORITIES FOR JUST AND PROPER DISPOSAL BY REMAINING PRESENT ON THE HEA RING DATES AND SUBMIT THE RELEVANT DOCUMENTS, OTHERWISE, THE REVENUE IS AT LI BERTY TO DISMISS THE APPEALS OF THE ASSESSEE EX-PARTE ON MERIT. BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, BOTH THE APPEAL OF THE ASSESSEE ARE P ARTLY ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF NOVEMBER, 2020 SD/- SD/- ( R. K. PANDA ) ( SUCHITRA KAMBLE ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25/11/2020 *MEHTA/R.N* COPY FORWARDED TO :- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NOS. 4030 & 4234/DEL/2019 DATE OF DICTATION 20 .1 1 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20 .11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK