Mohd Akram, Moradabad UP V. ITO -1(1), Moradabad UP

ITA 4394/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0505 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 14-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Principle of natural justice; Set aside
• Section: 271(1)(c); 144; 142(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.4394/DEL/2019 FOR A.Y. 2015-16 MOHD AKRAM GHOSIYO WALI PULIYA, NAWABPURA, MORADABAD-244001 PAN- ACZPA 0304 J VS. ITO WARD 1(1) MORADABAD (APPELLANT) (RESPONDENT) ASSESSEE BY - NONE - RE VENUE BY SH. PRAKASH DUBEY, SR. D.R. DATE OF HEARING: 23 /12 /2020 DATE OF PRONOUNCEMENT: 23 /12 /2020 ORDER PER ANIL CHATURVEDI, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.03.2019 OF THE COMMISSIONER OF INCOME TAX (A)- MORADABAD RELATING TO ASSESSMENT YEAR 2015-16. 2. ASSESSEE IS AN INDIVIDUAL WHO ELECTRONICALLY FILED HIS RETURN OF INCOME FOR A.Y. 2015-16 ON 29.09.2016 DECLARING TOTAL INCOME OF RS.3,25,280/-. THE CASE WAS SELECTED FOR SCRUTINY AND ITA NO. 4394/DEL/2019 PAGE | 2 THEREAFTER, NOTICE U/S 143(2) OF THE ACT ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S 142(1) OF THE ACT WAS ALSO ISSUED ON VARIOUS DATES. THE AO HAS NOTED THAT ASSESSEE DID NOT FILE ANY REPLY. HE THEREFORE, PROCEED TO FRAME THE ASSESSMENT U/S 144 OF THE ACT VIDE ORDER DATED 08.12.2017 AND THE TOTAL INCOME WAS DETERMINED AT RS.12,26,760/-. 3. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO BY AN EX PARTE ORDER DATED 26.03.2019 IN APPEAL NO.353/ITO-1(1)/MBD/2017-18 HAS DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING THE INCOME OF RS. 9,01,479 IN HANDS OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) OUGHT TO HAVE CONSIDERED THE GROUND OF APPEAL PLACED BEFORE HIM. THE ASSESSEE, THROUGH HIS AR, MAILED A GROUND OF APPEAL STATING THAT TURNOVER OF RS. 1,12,68,489/- BELONG TO THE PARTNERSHIP FIRM IN WHICH THE ASSESSE IS A PARTNER. THIS WAS THROUGH AN ONLINE COMMUNICATION WHERE FURTHER EVIDENCES COULD NOT BE FURNISHED DUE TO TECHNICAL DIFFICULTIES. THE LEARNED CIT(A) OUGHT TO HAVE HEARD THE ASSESSEES EXPLANATION IN SUPPORT OF HIS CLAIMS. HOWEVER, NO HEARING WAS FIXED AFTER THE DATE OF COMMUNICATION OF THE GROUND OF APPEAL AS MENTIONED ABOVE AND NO FINDING WAS GIVEN IN THIS REGARD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT THE ASSESSEE IS LIABLE TO TAX AUDIT AND LIABLE TO MAINTAINING BOOKS OF ACCOUNTS. ITA NO. 4394/DEL/2019 PAGE | 3 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND M LAW THE LEARNED ASSESSING OFFICER ERRED IN CHARGING INTEREST U/S 234A, 234B, 234C. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE INITIATION OF PENALTY PROCEEDING UNDER SECTION 271A, 271B, 271(1)(B), 271(1)(C) IS BAD IN LAW KEEPING IN VIEW THE GROUNDS MENTIONED ABOVE. ] 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR MODIFY ANY OF THE GROUNDS OF APPEAL. 4. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION HAS BEEN FILED THOUGH THE NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE. WE THEREFORE PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER CONSIDERING THE MATERIAL ON RECORD AND HEARING THE DR. 5. BEFORE US, LEARNED DR SUPPORTED THE ORDER OF AO. 6. WE HAVE HEARD LEARNED DR AND PERUSED THE MATERIAL ON RECORD. THE PERUSAL OF CIT(A) ORDER REVEALS THAT CIT(A) HAS PASSED AN EX PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. SUB SECTION (6) OF SECTION 250 OF I. T. ACT MANDATE THE CIT(A) TO STATE THE POINTS IN DISPUTE AND THEREAFTER ASSIGN THE REASONS IN SUPPORT OF HIS CONCLUSION. WE ARE OF THE VIEW THAT BY DISMISSING THE APPEAL FOR WANT OF PROSECUTION, LEARNED CIT(A) HAS FAILED TO FOLLOW THE MANDATE REQUIRED IN SUB SECTION (6) OF SECTION 250 OF THE ACT. FURTHER IT IS ALSO A WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HEARING SHOULD BE OFFERED TO THE PARTIES AND NO PARTIES SHOULD BE CONDEMNED UNHEARD. IN VIEW OF THESE ITA NO. 4394/DEL/2019 PAGE | 4 FACTS, WE SET ASIDE THE IMPUGNED ORDER OF CIT(A) DATED 26.03.2019 AND RESTORE THE ISSUE TO THE FILE OF CIT(A) FOR RE-ADJUDICATION OF THE ISSUES AFTER GRANTING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO FURNISH THE DETAILS CALLED FOR BY THE LOWER AUTHORITIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE GROUNDS RAISED BY THE ASSESSEE. THUS THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.12.2020 SD/- SD/- (BHAVNESH SAINI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER PY* DATE:- 23 .12.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI