M/s. Khurja Development Authority, Bulandshahr V. Addl. CIT, Bulandshahr

ITA 4289/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91301 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Assessee Lawyers: P K JAIN
• Keywords: Opportunity of being heard
• Section: 12A

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4 289 /DEL/201 4 A.Y. : 200 8 - 0 9 KHURJA DEVELOPMENT AUTHORITY , VS. COMMISSIONER OF INCOME TAX (APPEALS) YAMUNAPURAM COMMERCIAL COMPLEX INCOME TAX OFFICE, MG ROAD, BHOOR, BHAISALI GROUND, BULANDSHAHR 203001 MEERUT - 250002 (PAN: AAALK0805D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PK JAIN, CA . DEPARTMENT BY : SH. ROBIN RAWAL, SR. DR DATE OF HEARING : 09 - 7 - 2015 DATE OF ORDER : 0 9 - 7 - 2015 PER H.S. SIDHU: JM O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , MEERUT DATED 28 .3.201 4 PERTAINING TO ASSESSMENT YEAR 200 8 - 0 9 . 2. T HE GROUNDS OF APPEAL READ AS UNDER: - 1. BECAUSE THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND AGAINST THE FACTS OF THE APPEAL. 2. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WHOLLY UNJUSTIFIED IN DECIDING THE APPEAL EX - PARTE WITHOUT CONSIDERING THE FACTS OF THE APPEAL AND ALSO WITHOUT CONSIDERING 2 THE ADJOURNMENT APPLICATION FILED BY THE APPELLANT THROUGH REGISTERED POST. THE ORDER WAS PASSED BY LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 28.03.2014 WHEREAS THE ORDER WAS DISPATCHED ON 12.06.2014 WHEREAS AS PER INSTRUCTION NO. 20/2003 F. NO. 279/MISC 5312003 DATED 23.12.2003 THE ORDER MUST HAVE BEEN DISPATCHED WITHIN 15 DAYS FROM THE DATE OF ORDER. 3. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WHEREAS THE MAIN GROUND IN THE APPEAL BEFORE LEARNED CIT (APPEAL) WAS THAT THE ASSESSING OFFICER HAS ASSESSED SURPLUS O F 'RECEIPTS AND EXPENDITURE ACCOUNTS' MERELY ON THE BASIS OF REJECTION OF REGISTRATION ULS 12AA, BY COMMISSIONER OF INCOME TAX, ALTHOUGH THE ISSUE OF REGISTRATION WAS SUB - JUDICE BEFORE HON'BLE INCOME TAX APPELLATE TRIBUNAL. AND THAT ISSUE WAS DECIDED BY HO N'BLE ITAT, BENCH - A, NEW DELHI VIDE ORDER DATED 29.04.2014 IN ITA NO. 3875/DEL/2009 AND ITA NO. 905/DEL/2011 IN FAVOUR OF APPELLANT. THE APPELLANT HAS ALSO INFORMED ABOUT THE ORDER OF HON'BLE ITAT TO CIT (APPEAL) REGARDING THAT ORDER VIDE REGISTERED LETT ER ON 06.06.2014. 4. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OF THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. PRAYER IT IS THEREFORE PRAYED THAT THE APPEAL MAY KINDLY BE ALLOWED AND THE INCOME DETERMINED VIDE ASSESSMENT ORDER MAY KINDLY B E REDUCED TO NIL. 3 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH RELEVANT RECORDS AVAILABLE WITH ME, ESPECIALLY THE IMPUGNED ORDER . I AM OF THE VIEW THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT AFFORDING SUFF ICIENT OPPORTUNITY TO THE ASSESSEE AND WITHOUT CONSIDERING THE EVIDENCES FILED BY THE ASSESSEE BEFORE HIM. LD. COUNSEL OF THE ASSESSEE HAS ALSO FILED THE PAPER BOOK CONTAINING PAGES 1 TO 36 HAVING THE WRITTEN SUBMISSION, COPY OF ASSESSMENT ORDER, COPY O F APPEAL MEMO FORM 35, COPY OF ADJOURNMENT APPLICATION FILED ON 25.2.2014 ALONGWITH THE COPY OF HON BLE ALLAHABAD HIGH COURT IN THE CASE OF LUCKNOW AUTHORITY (2013) 385 TAXMANN.COM 246 (ALL.), COPY OF ADJOURNMENT APPLICATION DATED 25.3.2014, COPY OF INSTR UCTION FROM MINISTRY OF FINANCE INSTRUCTING CIT(A) DISPATCHED THE ORDER WITHIN 15 DAYS OF THE ORDER, COPY OF THE ORDER OF THE ITAT A - BENCH, IN THE CASE OF THE ASSESSEE INSTRUCTING CIT TO GRANT REGISTRATION U/S. 12A W.E.F. 1.4.2008 AND COPY OF ORDER OF THE HON BLE ALLAHABAD HIGH COURT IN THE CASE OF ASSESSEE DISMISSING THE APPEAL OF THE DEPARTMENT AGAINST THE ORDER OF ITAT. 4.1 KEEPING IN VIEW OF THE AFORESAID EVIDENCES PRODUCED BY THE ASSESSEE, I AM OF THE VIEW THAT INTEREST OF JUSTICE WOULD BE SERVED, IF THE ISSUES IN DISPUTE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, UNDER THE LAW, IN TERMS OF THE DECISION PASSED BY THE ITAT, DELHI A BENCH IN THE CASE OF THE ASSESSEE AS WELL AS THE ORDER PASSED BY THE HIGH COURT IN THE C ASE OF THE ASSESSEE DISMISSING THE APPEAL OF THE DEPARTMENT AGAINST THE ORDER OF THE ITAT MENTIONED 4 ABOVE. IN MY VIEW THE HON BLE HIGH COURT VIDE ITS ORDER DATED 12.12.2015 DISMISSED THE APPEAL FILED BY THE REVENUE PASSED IN ITA NO. 267 OF 2014 AND UPHEL D THE ORDER OF THE ITAT IN THE ASSESSEE S OWN CASE. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION S TO DECIDE THE SAME AFRESH UNDER THE LAW, KEEPING IN VIEW OF THE ORDER S OF THE HON BLE HIGH COURT OF ALLAHABAD AS WELL AS DELHI TRIBUNAL DECISION IN ASSESSEE S OWN CASE, AS MENTIONED ABOVE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 /7/201 5 . SD/ - [ H.S. SIDHU ] JUDICIAL MEMBER DATE: 09 /7/201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES