Sh. Rajiv Gupta, New Delhi V. ACIT, New Delhi

ITA 4510/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8201 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 28-01-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 27-11-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `F : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO.4510/DEL/2009 ASSESSMENT YEAR : 2005-06 SHRI RAJIV GUPTA, ASSTT. COMMISSIONER OF INCOME- TAX, CA-55/2, TAGORE GARDEN, VS. CIRCLE-26(1), N EW DELHI. NEW DELHI. PAN: AHCPG3059J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL AGG ARWAL, AR. RESPONDENT BY : SHRI H.K. LAL, S R. DR. O R D E R PER B.P. JAIN, ACCOUNTANT MEMBER. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXIV, NEW DELH I, DATED 14.09.2009 PERTAINING TO THE ASSESSMENT YEAR 2005-0 6 IN AN APPEAL AGAINST ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE INCOM E-TAX ACT, 1961 (THE ACT). 2. THE ASSESSEE HAS RAISED AS MANY AS 4 GROUNDS OF APPEAL. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI SALIL AGGARWAL HAS NO T PRESSED GROUND NOS.2 TO 4 AND THE SAME ARE DISMISSED AS NOT PRESSED. 3. GROUND NOS.1 & 1.1 BEING PRESSED READ AS UNDER:- 2 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN DISPO SING OFF THE APPEAL EX PARTE, WITHOUT GRANTING THE ASSESSEE A FA IR, PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD, THEREBY VIOL ATING THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, ANY DISPOSAL OF THE APPEAL IN ABSENCE OF PROVIDING THE APPELLANT A VALID AND MEANINGFUL OPPORTUNITY IS A NULLITY. 4. THE BRIEF FACTS OF THE CASE AS EMERGE OUT OF PAR A 3 OF THE ORDER OF THE LEARNED CIT(A) ARE THAT THE ASSESSEE HAS BEEN SERVE D NOTICES FOR HEARING ON 23.10.2008, 19.11.2008, 01.12.2008, 28.05.2009, 22. 06.2009 AND 15.07.2009 FOR WHICH THE ASSESSEE HAS SOUGHT ADJOUR NMENT WHICH WERE GIVEN. THEREAFTER THE ADJOURNMENT FOR 3.8.2009 WAS GIVEN WHICH REMAINED UN-COMPLIED WITH AND THEREAFTER THE NOTICE FOR 14.9 .2009 WAS ISSUED WHICH ALSO REMAINED UN-COMPLIED WITH. THEREAFTER THE LEA RNED CIT(A) PASSED AN EX PARTE ORDER. 5. SHRI SALIL AGGARWAL, LEARNED COUNSEL FOR THE ASS ESSEE MADE A STATEMENT AT BAR THAT THE LAST NOTICE FOR HEARING O N 14.9.2009 WAS NEVER SERVED UPON THE ASSESSEE AND PRAYED TO RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) IN THE INTEREST OF JUSTICE. THE LEA RNED DR SHRI H.K. LAL ON THE OTHER HAND, ARGUED THAT SUFFICIENT OPPORTUNITIE S WERE GIVEN TO THE ASSESSEE AND THE CASE HAS RIGHTLY BEEN DECIDED ON M ERIT BY THE LEARNED CIT(A). 3 6. WE HAVE HEARD THE PARTIES AT LENGTH AND PERUSED THE MATERIAL ON RECORD. THERE IS NO DISPUTE TO THE FACT THAT SUFFI CIENT OPPORTUNITIES AT 6 DIFFERENT OCCASIONS WERE GIVEN TO THE ASSESSEE FOR WHICH THE ADJOURNMENTS WERE SOUGHT EACH TIME. THE LAST OPPORTUNITY GIVEN ON 14.9.2009 FOR WHICH NOTICE IS STATED TO HAVE BEEN ISSUED HAS NOT BEEN S ERVED AS CLAIMED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE LEARNED DR O N THE OTHER HAND, COULD NOT PRODUCE ANY MATERIAL TO ESTABLISH THAT THE NOTI CE HAD BEEN SERVED UPON THE ASSESSEE FOR APPEARING ON 14.9.2009 AND THEREFO RE, THE ORDER PASSED BY THE LEARNED CIT(A) IS CONSIDERED TO BE WITHOUT GIVI NG OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE INTEREST OF JUSTICE THE MATTER IS RESTORED TO THE FILE OF THE LEARNED CIT(A) WHO WILL DECIDE THE ISSU E DE NOVO BUT BY AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED CIT(A) IS, THEREFORE, DIRECTED TO ACT ACCORDINGLY. THUS GROUND NOS. 1 & 1.1 OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2010. SD/- SD/- (I.P. BANSAL) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 5 TH FEBRUARY, 2010. 4 ITA NO.4510/DEL/2009 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.