M/s. Juhi Investment Co. (P) Ltd., New Delhi V. DCIT, New Delhi

ITA 4419/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97752 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 29-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 16-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Valuation report

Judgement Text

I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `D NEW DELHI BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER I.T.A.NO.4419/DEL/2012 ASSESSMENT YEAR : 2005-06 I.T.A.NO.4420/DEL/2012 ASSESSMENT YEAR : 2005-06 JUHI INVESTMENT CO. (P) LTD., VS DCIT, L-77, LAJPAT NAGR-II, CIRCLE-4(1), NEW DELHI. NEW DELHI. (PAN: AAACJ2146B) (APPELLANT) (RESPONDENT) APPELLANT B Y: SHRI SANDEEP SAPRA, ADV. RESPONDENT BY : SHRI NIRM ALJEET SINGH, SR. DR DATE OF HEARING: 1.10.2015 DATE OF PRONOUNCEMENT: 6.11.2015 O R D E R PER CHANDRAMOHAN GARG, J.M. I.T.A. NO.4419/DEL/2012 THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)- VIII, NEW DELHI DATED 14.5.2012 IN APPEAL NO. 217/2 010-11 FOR AY 2005-06. APPLICATION OF ASSESSEE SEEKING ADMISSION OF ADDIT IONAL GROUNDS: 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES. LEAR NED COUNSEL OF THE ASSESSEE SUBMITTED THAT BEFORE FIRST APPELLATE AUTH ORITY, THE ASSESSEE RAISED I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 2 ADDITIONAL GROUND ALLEGING VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BY THE ASSESSING OFFICER AS FROM THE SECOND PAGE PARA 3, I T IS APPARENT THAT THE ASSESSEE ASKED SOME TIME TO REPLY TO QUESTIONNAIRE DATED 30.11.2007 BUT THE ASSESSING OFFICER REJECTED THE PRAYER OF THE ASSESS EE DATED 24.12.2007 AND PASSED IMPUGNED ASSESSMENT ORDER IN HASTE WITHOUT P ROVIDING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE WHICH WAS A CLEAR VIO LATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE THE ASSESSEE WAS DENIED OPPORTUNITY OF BEING HEARD BY THE ASSESSING OFFICER. LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEES ADDITIONAL GROUND BEFORE CIT(A) WAS FILE D IN WRITTEN SUBMISSIONS AND THE SAME WAS NOT ADJUDICATED BY THE FIRST APPEL LATE AUTHORITY. LEARNED COUNSEL OF THE ASSESSEE FURTHER ELABORATED THAT WHI LE FRAMING APPEAL BEFORE THIS TRIBUNAL, THE COUNSEL OMITTED TO RAISE THIS LEGAL G ROUND WHICH WAS NECESSARY AND GOES TO THE ROOT OF THE MATTER AND ALSO RELEVAN T FACTS AND DOCUMENTS ARE ALREADY ON RECORD, HENCE, ADDITIONAL GROUNDS OF THE ASSESSEE MAY KINDLY BE ADMITTED FOR ADJUDICATION. 3. LD. DR FAIRLY ACCEPTED THAT THE CIT(A) DID NOT A DJUDICATE ADDITIONAL GROUND OF THE ASSESSEE WHICH WAS SUBMITTED IN WRITT EN SUBMISSIONS AND PERTAINED TO VIOLATION OF PRINCIPLES OF NATURAL JUS TICE BY THE ASSESSING OFFICER. 4. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, W E ARE OF THE VIEW THAT THE ALLEGATION/GROUND OF THE ASSESSEE, ALLEGING THE DENIAL OF OPPORTUNITY OF BEING HEARD BY THE ASSESSING OFFICER WAS RAISED BUT THE S AME WAS NOT ADJUDICATED BY I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 3 THE CIT(A). NOW, THE ASSESSEE WANTS TO RAISE THIS ISSUE BEFORE THIS TRIBUNAL AS THE SAME COULD NOT BE RAISED IN THE ORIGINAL GROUND S. THIS ADDITIONAL GROUND IS NECESSARY FOR PROPER ADJUDICATION OF ALLEGATIONS OF THE ASSESSEE AND ALL RELEVANT FACTS AND DOCUMENTS ARE ALREADY ON RECORD BEFORE US AND THE ISSUE GOES TO THE ROOT OF THE VALIDITY OF THE ASSESSING OFFICERS ORD ER, THUS, WE ADMIT THE ADDITIONAL GROUNDS OF THE ASSESSEE FOR ADJUDICATION WHICH READ AS FOLLOWS:- 1. THAT THE IMPUGNED ASSESSMENT ORDER AS PA SSED BY THE AO ON 28/12/2007 DESERVES TO BE CANCELLED/ANNUL LED IN VIEW OF THE FACT THAT THE APPELLANT HAD NOT BEEN PR OVIDED SUFFICIENT OPPORTUNITY TO EXPLAIN ITS CASE AND THE AO HAD VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. CIT(A) HAD ERRED ON FACTS AND UN DER THE LAW IN NOT ADJUDICATING/ DECIDING THE ABOVE ADDITIO NAL GROUND OF APPEAL WHICH WAS SPECIFICALLY RAISED BEFO RE HIM. 5. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD ON ABOVE ADDITIO NAL GROUNDS. LEARNED COUNSEL OF THE ASSESSEE REITERATED THAT THE ASSESSEE WAS NO T PROVIDED DUE OPPORTUNITY OF BEING HEARD BY THE ASSESSING OFFICER AND THE ASSESS ING OFFICER PASSED THE ASSESSMENT ORDER WITHOUT PROVIDING DUE OPPORTUNITY OF BEING HEARD FOR THE ASSESSEE. HENCE, THE ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER ON 28.12.2007 DESERVES TO BE CANCELLED AND ANNULLED IN VIEW OF THE FACT THAT THE APPELLANT HAD NOT BEEN PROVIDED SUFFICIENT OPPORTUN ITY TO EXPLAIN ITS CASE AND THE ASSESSING OFFICER HAS VIOLATED THE PRINCIPLES OF NA TURAL JUSTICE. LEARNED I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 4 COUNSEL OF THE ASSESSEE VEHEMENTLY CONTENDED THAT T HE CIT(A) ALSO ERRED IN NOT ADJUDICATING THIS ISSUE OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE WHICH WAS SPECIFICALLY RAISED BY THE ASSESSEE BY WAY OF ADDIT IONAL GROUND. 6. LD. DR STRONGLY OPPOSED THE ALLEGATION OF THE AS SESSEE THAT THE ASSESSING OFFICER VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. HOWEVER, SUBSEQUENTLY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IF IT IS FOUND NECESSARY, THEN THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE MATT ER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DE NOVO REASSESSMENT TO THE FILE OF THE ASSESSING OFFICER. 7. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, W E ARE OF THE OPINION THAT THE ASSESSEE WAS NOT PROVIDED DUE OPPORTUNITY TO EX PLAIN HIS CASE DURING ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER DE NIED OPPORTUNITY TO EXPLAIN ITS CASE AND PASSED THE ASSESSMENT ORDER IN A HASTY MANNER WHICH IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AT THE A SSESSMENT STAGE. HENCE, ADDITIONAL GROUND NO. 1 & 2, AS SET OUT ABOVE, OF T HE ASSESSEE ARE ALLOWED AND THE CASE IS RESTORED TO THE FILE OF THE ASSESSING O FFICER FOR A FRESH DE NOVO REASSESSMENT. NEEDLESS TO SAY THAT THE ASSESSING O FFICER SHALL PROVIDE DUE OPPORTUNITY OF BEING HEARD FOR THE ASSESSEE AND SHA LL PASS REASSESSMENT ORDER WITHOUT BEING PREJUDICED FROM THE EARLIER ORDER AND IMPUGNED ORDER OF THE CIT(A). I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 5 APPLICATION OF THE ASSESSEE FOR ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL) RULES, 1963 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RELEVANT ADDITIONAL EVIDENCE SOUGHT TO BE ADMITTED BY THIS T RIBUNAL SPREAD OVER 23 PAGES. 9. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT V ALUATION REPORT OF THE EQUITY SHARES OF M/S SOMDUTT BREWERIES LTD. AND IMM OVABLE PROPERTY BEING LAND IS NECESSARY FOR ADJUDICATION OF THE ISSUE AND ALLEGATIONS LEVELLED BY THE ASSESSING OFFICER AND THE CIT(A) DURING FIRST ROUND OF PROCEEDINGS. 10. REITERATING ASSESSEES WRITTEN SUBMISSIONS AND CONTENTS OF APPLICATION UNDER RULE 29 OF IT(AT) RULES 1963, LEARNED COUNSE L OF THE ASSESSEE CONTENDED THAT THE ADDITIONAL EVIDENCE BEING VITAL DOCUMENT I N THE CASE OF THE APPELLANT ARE NECESSARY TO BE ADMITTED IN THE INTEREST OF JUSTICE AND PROPER ADJUDICATION OF THE DISPUTE INVOLVED IN THE GROUNDS OF APPEAL. IT WAS ALSO CONTENDED THAT THE APPELLANT MAY PLEASE BE ALLOWED OPPORTUNITY OF BEIN G HEARD ON MERIT TO PRESENT THE AFOREMENTIONED DOCUMENT AND DETAILS BEFORE THIS TRIBUNAL. LEARNED COUNSEL OF THE ASSESSEE FINALLY PARTED WITH HIS ARGUMENTS W ITH A PRAYER THAT SINCE THE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE ASSE SSING OFFICER, HENCE THE ASSESSING OFFICER MAY KINDLY BE DIRECTED TO LOOK IN TO THE SAID ADDITIONAL EVIDENCE WHICH COULD NOT BE SUBMITTED DURING EARLIE R ROUND OF PROCEEDINGS AND I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 6 MAINLY DUE TO TWO REASONS VIZ. FIRST THE AUTHORITIE S BELOW NEVER DIRECTED THE ASSESSEE TO PRODUCE THE SAID VALUATION REPORTS AND SECONDLY, THE CIT(A) RAISED THE QUERY REGARDING VALUATION OF SHARES OF M/S SOMD ATT BREWERIES LTD. AS ON 31.12.2004 WHICH IS GERMANE TO DECIDE THE ISSUE. O N THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OBJECTED TO TH E ADMISSION OF ADDITIONAL EVIDENCE. HOWEVER, HE SUBMITTED THAT IF IT IS FOUN D JUST AND PROPER, THEN THE DEPARTMENT HAS NO SERIOUS OBJECTION TOWARDS ADMISSI ON OF ADDITIONAL EVIDENCE AND THE DEPARTMENT SHOULD ALSO GIVE RIGHT TO REBUT THE SAME BY WAY OF RELEVANT MATERIAL. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO CONTENDED THAT THERE IS NO NAME OF M/S OMAXE INVESTMENTS & FINANCE (P) LTD. IN THE NATIONAL DATA BASE. 11. LEARNED COUNSEL OF THE ASSESSEE IN THE REJOINDE R SUBMITTED THAT THE ASSESSEE HAS NO SERIOUS OBJECTION IF THE ASSESSING OFFICER DECIDED THE ISSUE DE NOVO CONSIDERING ALL THE RELEVANT MATERIAL AFTER PR OVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 12. ON CAREFUL CONSIDERATION OF ABOVE, WE SAFELY IN FER THAT THERE IS NO SERIOUS OBJECTION TO BOTH THE PARTIES IF ADDITIONAL EVIDENC E WHICH COULD NOT BE SUBMITTED DUE TO SUFFICIENT REASONS, AS SET OUT ABOVE, BEFORE AUTHORITIES BELOW, WHICH IS VITAL FOR ADJUDICATION OF THE ISSUES INVOLVED IN TH IS CASE. SINCE BY THE EARLIER PART OF THIS ORDER, WE HAVE ALLOWED ADDITIONAL GROUND OF THE ASSESSEE AND THE CASE HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO AND A FRESH ADJUDICATION, HENCE, WE ADMIT ADDITIONAL EVIDENCE B ECAUSE THE ASSESSEE COULD I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 7 NOT GET AN OPPORTUNITY OF BEING HEARD AND TO EXPLAI N HIS CASE BEFORE ASSESSING OFFICER AND ADDITIONAL EVIDENCE SOUGHT TO BE ADMITT ED IS RELEVANT AND VITAL FOR PROPER AND JUST ADJUDICATION OF THE ENTIRE CASE. T HEREFORE, FOR THE REASONS SET OUT ABOVE, WE ADMIT THE ADDITIONAL EVIDENCE OF THE ASSE SSEE AND THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE SAME DURING DE NOVO REASSESSMENT. AT THE SAME TIME, WE ALSO DIRECT THE ASSESSING OFFICER TO CONSIDER DOCUMENTS, DETAILS AND EVIDENCE BROUGHT ON RECORD BY THE LD. LD. DR AS STATED ABOVE. ACCORDINGLY, APPLICATION OF THE ASSESSEE/APPELLANT UNDER RULE 29 OF THE IT(AT) RULES, 1963 IS HEREBY ALLOWED WITH SAID DIRECTIONS TO THE ASSESSIN G OFFICER. 13. SINCE WE HAVE RESTORED CASE TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION AND A FRESH FRAMING OF ASSESSMENT , HENCE, OTHER GROUNDS OF THE ASSESSEE ON MERITS BECOME ACADEMIC AND INFRUCUT OUS AND WE DISMISS THE SAME BEING INFRUCTUOUS. I.T.A. NO.4420/DEL/2012 OF THE ASSESSEE 14. THIS APPEAL HAS BEEN DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 23.5.2012 IN APPEAL NO. 36/2010-11 FOR SAME ASSESSM ENT YEAR 2005-06 BY WHICH THE FIRST APPELLATE AUTHORITY HAS UPHELD PENA LTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)( C) OF THE ACT. 15. BOTH PARTIES ARE AGREED THAT SINCE QUANTUM APPE AL HAS BEEN ALLOWED BY RESTORING THE CASE TO THE ASSESSMENT STAGE, HENCE T HIS APPEAL BECOMES I.T.A. 4419 & 4420/D/2012 ASSESSMENT YEAR 2005-06 8 INFRUCTUOUS AND WE DISMISS THE SAME BEING INFRUCTUO US. BEFORE WE PART WITH THE ORDER, WE FURTHER MAKE IT CLEAR THAT AS PER THE OUT COME OF THE REASSESSMENT ORDER, IF THE ASSESSING OFFICER FINDS IT APPROPRIATE TO IN ITIATE PENALTY PROCEEDINGS, IF REQUIRED, THE ISSUE OF LEVY OF PENALTY US/ 271(1) ( C) OF THE ACT IS LEFT OPEN TO HIS WISDOM AS PER RESULTS OF THE REASSESSMENT. 16. IN THE RESULT, QUANTUM APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES AND PENALTY APPEAL OF THE ASSESSEE IS DISM ISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 6.11.2015. SD/- SD/- (J.S. REDDY) (CHANDRAMOHA N GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 06TH NOVEMBER, 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR