Ijajuddin, Delhi V. ITO, Ward- 1(2), Ghaziabad

ITA 4356/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2340 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: UDHAM SINGH
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC: NEW DELHI) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.:- 4356/DEL/2018 (ASSESSMENT YEAR: 2009-10) IJAJUDDIN C/O PAWAN CHAUDHARY, 204, DA-9, ENKAY HOUSE, MAIN VIKAS MARG, SHAKARPUR, NEW DELHI, PIN: 110092 VS. ITO WARD-1(2) GHAZIABAD PAN NO: AARPI9267J APPELLANT RESPONDENT ASSESSEE BY : SH. UDHAM SINGH, ADV. REVENUE BY : SH. S.L. ANURAGI, SR. DR DATE OF HEARING : 13.06.2019 DATE OF PRONOUNCEMENT : 24.06.2019 ORDER PER DIVA SINGH : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 27.03.2018 OF CIT(A) -GHAZIABAD, PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS ON MERIT . APPLICATION HAS ALSO BEEN MOVED PRAYING FOR ADMISSION OF FRESH GROUNDS C HALLENGING THE DEPARTMENTAL ACTION ON JURISDICTION FOR WANT OF NOT ICE U/S 143(2) ETC. 2. THE LD. AR AT THE TIME OF HEARING ADDRESSING THE A PPLICATION MADE A PRAYER FOR ADMISSION OF ADDITIONAL GROUNDS. IT WAS ALSO HIS SUBMISSION THAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE HAS NOT BEEN PROPERLY REPRESENTED BY HIS COUNSEL BOTH AT THE ASSESSMENT STAGE AND AGAIN AT THE STAGE OF THE FIRST APPELLATE AUTHORITY. IT WAS SUBMITTED BY THE LD. AR THAT BEFORE THE A.O. THE ASSESSEE WAS REPRESENTED BY SH. DHARAM RAJ SINGH, A DVOCATE AND SUBMISSIONS TO THE SAID EXTENT WERE ADVANCED BEFORE THE CIT(A) BY ANOTHER COUNSEL AND THESE WERE BEEN EXTRACTED IN THE IMPUGNED ORDER AT INTERNAL PAGE 4, HOWEVER THE SAID COUNSEL ALSO FAILED TO ADDRESS THE JURISDI CTIONAL SHORTCOMING AVAILABLE ITA NO.:- 4356/DEL/2018 IJAJUDDIN. PAGE 2 OF 3 ON RECORD BEFORE THE CIT(A). IT WAS HIS SUBMISSION THAT AS A RESULT OF THESE REASONS THE ASSESSEE HAD TO MAKE A PRAYER FOR ADMIS SION OF FRESH EVIDENCES BEFORE THE CIT(A) WHICH ALSO HAS NOT BEEN CONSIDERE D BY THE CIT(A) APPROPRIATELY AS SHE HAS DISMISSED IT ON THE GROUND THAT FRESH EVIDENCE WAS NOT MOVED BY WAY OF APPLICATION UNDER RULE 46A. IT WAS HIS SUBMISSION THAT THE ASSESSEE WAS REPRESENTED BY ANOTHER COUNSEL MR. DHARAM RAJ SINGH, ADV. AND AFTER THE CARELESSNESS OF THE COUNSELS, THE ASS ESSEE HAS AGAIN CHANGED COUNSEL. IN THE FACTS OF THE PRESENT CASE IT WAS H IS SUBMISSION THAT THE ADDITIONS MADE AND SUSTAINED MAY BE DELETED ALTERNA TELY JURISDICTIONAL CHALLENGE POSED IN THE ADDITIONAL GROUND BE ADJUDIC ATED UPON. 3. THE LD. SR. DR, ON THE OTHER HAND, SUBMITTED THAT ON THE JURISDICTIONAL ISSUE THERE IS NO FINDING AND IT APPEARS FROM THE O RDER THAT THE ASSESSEE INFACT DID NOT APPEAR BEFORE THE CIT(A) AS NO ORAL REPRESE NTATIONS ARE FOUND TO BE MADE AND INSTEAD HAS MERELY RELIED UPON SOME WRITTE N SUBMISSIONS. IN THE ABSENCE OF ANY DISCUSSION ON THE JURISDICTIONAL ISS UE WHICH WAS NOT RAISED BEFORE THE CIT(A) THE MATTER MAY BE REMANDED. ADMI SSION OF FRESH GROUNDS WAS NOT OPPOSED, HOWEVER IT WAS HIS SUBMISSION THAT THE MATTER MAY BE REMANDED BACK TO THE CIT(A) AS IN THE ABSENCE OF AN Y DISCUSSION ON FACTS HE WAS NOT IN A POSITION TO MAKE ANY SUBMISSION. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE IT IS SEEN THAT THE ASSESSEE IS PLEADED TO BE A SEMI ILLITERATE PERSON WORKING AS A CIVIL CO NTRACTOR WHO IS STATED TO HAVE ENGAGED MR. DHARAM RAJ SINGH, ADV. AT THE ASSESSMEN T STAGE. THE SAID COUNSEL WAS FAULTED ON THE GROUNDS OF HAVING FAILED TO PLACE THE NECESSARY DOCUMENTS ETC. BEFORE THE AO AS A RESULT OF THIS TH E DEPOSITS IN THE BANK ACCOUNTS WERE TREATED AS HIS INCOME RESULTING IN AD DITION OF RS. 34,36,079/-. IT IS SEEN THAT BEFORE THE CIT(A) THE ASSESSE RELIED U PON SOME WRITTEN SUBMISSIONS, ADMITTEDLY APPLICATION UNDER RULE 46 W AS NOT MOVED. IT IS SEEN THAT THE LAPSES ON ACCOUNT OF MR. DHARAM RAJ SINGH, ADV. WERE MENTIONED BEFORE THE SAID AUTHORITY WHICH SUBMISSIONS HAVE BE EN EXTRACTED IN THE IMPUGNED ORDER AT PAGE 4. CONSIDERING THE SUBMISSIO NS OF THE PARTIES THE ITA NO.:- 4356/DEL/2018 IJAJUDDIN. PAGE 3 OF 3 ADDITIONAL GROUNDS ON JURISDICTION WHICH GOES TO TH E ROOT OF THE MATTER ARE ADMITTED. SINCE NO SUCH CHALLENGE WAS POSED BEFORE THE CIT(A) CONSEQUENTLY THERE IS NO DISCUSSION ON FACTS. ACCORDINGLY FOR WA NT OF DISCUSSION ON FACTS ALSO THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFT ER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTEREST IS ADVISED TO PARTICIPATE BEFORE THE SAID AUTHORITY FU LLY AND FAIRLY. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOS ED THE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL A VAILABLE ON RECORD. 5. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. SD/- S/S- (DIVA SINGH) JUDICIAL MEMBER DATED: 12 24.06.2019 BIDHAN/AG(CHD)/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI