M/s. Gateway Impex Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4532/DEL/2012

• Counselvise Citation: 453220114 RSA 2012
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-05-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 24-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: SANTOSH K AGARWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C: NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO. 4532/DEL/2012 ASSESSMENT YEARS: 2003-04 M/S. GATEWAY IMPEX PVT. LTD. VS. A CIT LOTUS TOWERS, CIRCLE 12 (1) COMMUNITY CENTRE, NEW DELHI. NEW DELHI 110 065 (PAN AAACG6562C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANTOSH.K. AGARWAL, ADVOCATE RESPONDENT BY : SHRI SATPAL SINGH, SR. DR DATE OF HEARING : 17/12/2012 DATE OF PRONOUNCEMENT : ORDER PER I.C. SUDHIR, JUDICIAL MEMBER FIRST APPELLATE ORDER HAS BEEN QUESTI ONED BY THE ASSESSEE ON SEVERAL GROUNDS. GROUND NOS. 2 TO 4 HAVE BEEN DEVOTED ON TH E CONTENTION THAT THE FIRST APPEAL HAS BEEN DISMISSED EX PARTE WITHOUT ADJUDICA TING THE SAME ON MERITS AND WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE GROUNDS 5 & 6 THE DISALLOWANCE UPHELD BY THE LD. CIT(A) HAVE BE EN QUESTIONED. 2. THE REMAINING GROUNDS 1, 7 TO 10 ARE GE NERAL IN NATURE. ITA NO. 4532/DEL/12 2 3. IN SUPPORT OF GROUND NO. 2 TO 4 THE LD . AR REFERRED AFFIDAVIT OF SHRI PANKAJ, THE LD. CHARTERED ACCOUNTANT WHO WAS AUTHOR IZED BY THE ASSESSEE COMPANY TO REPRESENT ITS CASE BEFORE THE FIRST APPE LLATE AUTHORITY FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, A COPY THEREOF HAS BEEN MADE AVAILABLE AT PAGE NO. 1 TO 3 OF THE PAPER BOOK. IN THIS AFFIDAVI T SHRI PANKAJ HAS SUBMITTED THAT ASSESSEE WAS TO FURNISH PAPER BOOK IN THE CASE AND ON 9 TH MAY, 2012 WHEN THE HEARING WAS FIXED HE WENT TO THE OFFICE OF THE LD. CIT(A) AND REQUESTED HIM FOR SOME MORE TIME TO ENABLE HIM TO PREPARE THE MAT TER. THE REQUESTED ADJOURNMENT WAS REFUSED AND HE WAS DIRECTED TO COME AT 2.30 P.M. AT 2.30 PM THE LD. AR WENT TO THE OFFICE OF LD. CIT(A) WITH IN COMPLETE PAPER BOOK TO EXPLAIN THE MATTER, THE LD. CIT(A) WAS NOT THERE AN D ON ENQUIRY IT WAS INFORMED THAT HE HAD GONE TO ATTEND A MEETING WITH COMMISSIO NER OF INCOME TAX, NEW DELHI AND WOULD COME LATE FROM THE MEETING. IT WAS ALSO INFORMED THAT HE WOULD NOT BE AVAILABLE FOR NEXT TWO DAYS BECAUSE OF MEETI NG. THE LD. AR WAS SUGGESTED THAT HE SHOULD NOT WAIT FOR HIM AND MEET HIM ON MONDAY I.E. 14 TH MAY, 2012. LD. AR WENT BACK AND ON 14 TH MAY, 2012, HE WENT TO THE OFFICE OF THE LD. CIT(A) WITH THE PAPER BOOK PREPARED BUT LD. CIT(A) DECLINED TO HEAR AND AFTER LOOKING THE FILE STATED THAT HE HAD PASSED A N ORDER DISMISSING THE APPEAL. 4. THE LD. DR OPPOSED THE ABOVE SUBMISSION . HE DREW OUR ATTENTION TO PAGE NO. 3 OF THE FIRST APPELLATE ORDER TO EXPLAIN THAT DESPITE SEVERAL OPPORTUNITIES AS NOTED BY LD. CIT(A) THE ASSESSEE D ID NOT BOTHER TO COOPERATE WITH HIM AND THUS LD. CIT(A) WAS HAVING NO OPTION B UT TO DISMISS THE APPEAL. ITA NO. 4532/DEL/12 3 5. HAVING GONE THROUGH THE FIRST APPELLATE ORDER WE FIND THAT THE LD. CIT(A) HAD GIVEN SEVERAL OPPORTUNITY TO THE ASSESSE E TO PRESENT ITS CASE BEFORE HIM. ON 14.12.2011 NOTICE FOR HEARING WAS ISSUED FO R 19.1.2012. ON 19.1.2012 THE LD. AR SOUGHT ADJOURNMENT WHICH WAS ACCEDED TO AND HEARING WAS ADJOURNED TO 15.2.2012. AGAIN ON 15.2.2012 THE LD. AR SOUGHT ADJOURNMENT WHICH WAS ACCEDED TO AND HEARING WAS ADJOURNED TO 1 9.3.2012. AGAIN ON 19.3.2012 ADJOURNMENT WAS SOUGHT WHICH WAS GRANTED AND HEARING WAS ADJOURNED TO 9.5.2012. THE LD. CIT(A) HAS NOTED THA T ON 9.5.2012 THE LD. AR DID NOT ATTEND THE HEARING WHEREAS ON AFFIDAVIT THE LD. CHARTERED ACCOUNTANT SHRI PANKAJ HAS STATED THAT HE APPEARED BEFORE HIM AT AR OUND 11.30 AM AND REQUESTED FOR ADJOURNMENT WHICH WAS REFUSED AND HE WAS ASKED TO COME AT 2.30 PM. HE COMPLIED WITH THE DIRECTION AND WENT TO HIS OFFICE WITH INCOMPLETE PAPER BOOK PREPARED TO EXPLAIN THE MATTER BUT LD. CIT(A) WAS NOT IN HIS OFFICE. THUS EVEN WITHOUT GOING TO THIS CONTROVERSY AS TO WHETHE R LD. AR HAD ATTENDED HEARING FIXED ON 9.5.2012 OF THE FIRST APPEAL, WE F IND THAT THE LD. CIT(A) HAS NOT DISPOSED OFF THE FIRST APPEAL BY PASSING A SPEAKING ORDER ON MERITS OF THE CASE ON THE BASIS OF MATERIAL ALREADY AVAILABLE ON RECOR D. HE HAS SIMPLY UPHELD THE ADDITION MADE BY THE AO. HE HAS NEITHER DISCUSSED T HE FACTS OF THE ISSUES RAISED BEFORE HIM NOR THE JUSTIFICATION OF THE ADDITIONS M ADE BY THE AO. UNDER THESE CIRCUMSTANCES AND TO MEET OUT THE END OF JUSTICE WE FIND IT A FIT CASE TO SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO PASS A SPEAKING ORDER AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE PARTIES. IT IS OR DERED ACCORDINGLY. THE ASSESSEE ITA NO. 4532/DEL/12 4 IS EXPECTED TO COOPERATE WITH THE FIRST APPELLATE A UTHORITY. THE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PERFORMANCES. 6. IN THE RESULT APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21.12.2012. SD/- SD/- (J.SUDHAKAR. REDDY) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 21.12.2012 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT