Pradeep Kumar Aggarwal, Delhi V. ACIT, New Delhi

ITA 4560/DEL/2013

• Counselvise Citation: 456020114 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: DEVESH PAREKH
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO. - 4560 /DEL/201 3 (ASSESSMENT YEAR - 2008 - 09 ) PR A DEEP KUMAR AGGARWAL, 3/148 (FF), SUNDER VIHAR, PASCHIM VIHAR, DELHI - 110087 P AN - AAKPA1255B (APPELLANT) VS ACIT, CIRCLE - 19(1), 8 TH FLOOR, CIVIC CENTRE, MINTO ROAD, NEW DELHI (RESPONDENT) APPELLANT BY SH. DEVESH PAREKH, CA RESPONDENT BY SH.VIKRAM SAHAY, SR. DR DATE OF HEARING : - 0 2. 0 3 .2015 DATE OF PRONOUNCEMENT : - 02 .0 3 .2015 ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30 .0 1 .2013 OF CIT(A) - XXII , NEW DELHI PERTAINING TO 2008 - 09 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NOS - 1, 2 & 3 ON WHICH THE PARTIES WERE HEARD. THE SAME READ AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - XXII HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ASSESSMENT FRAMED U/S 143(3) OF THE I.T. ACT BY PASSING THE EX - PARTE ORDER WHICH IS BAD IN LAW, ILLEGAL, UNJUSTIFIED, UNCALLED FOR AND ARBITRARY AND AS SUCH LIABLE TO BE SET - ASIDE. 2. THAT THE APPELLANT HAS NOT BEEN PROVIDED WITH PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD BEFORE CONF IRMING THE ASSESSMENT FRAMED U/S 143(3) OF THE IT ACT AND AS SUCH ACTION OF THE LD. CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL LAW OF JUSTICE, EQUITY AND FAIR PLAY AND ALSO VERY PROVISIONS OF THE LAW. 3. THAT THE NOTICE/NOTICES ISSUED BY THE OFFICE OF CIT(A) - XXII, NEW DELHI WERE SENT EITHER ON WRONG ADDRESS OR NOT DELIVERED TO THE APPELLANT AT THE PRESENT AND CURRENT ADDRESS AND, THEREFORE, THE DISMISSAL ORDER PASSED BY HIM IS WITHOUT PROVIDING PROPER AND SUFFICIENT OPPORTUNITY OF 2 I.T.A .NO. - 4560 /DEL/201 3 BEING HEARD AND, AS SUCH, LIABLE TO BE SET - ASIDE TO BE MADE DE - NOVO WITH SUITABLE DIRECTION. 2. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I T IS SEEN THAT THE CIT(A) AFTER ISSUING VARIOUS NOTICE S DISMISSED THE ASSESSSEE S APPEAL IN LIMINE HOLDING AS UNDER: - 5. IN CIT VS B.N. BHATTACHARYA (1977) 118 ITR 461 (SC), THE HON BLE SUPREME COURT WHILE DEALING WITH THE ISSUE OF PROSECUTION OF APPEAL HAS STATED THAT PREFERRING AN APPEAL MEANS MORE THAN FORMA LLY FILING IT BUT EFFECTIVELY PURSUING IT . THE HON BLE ITAT, DELHI, IN CIT VS MULTIPLAN INDIA PVT. LTD., AS REPORTED IN 38 ITD 320 (DELHI), WHEN FACED WITH A SIMILAR SITUATION OF NON - PROSECUTION OF APPEAL DISMISSED THE APPEAL OF REVENUE. 6. IN VIEW OF THE A BOVE SITUATION AS DISCUSSED IN PARA 4, IT IS CLEAR THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL. ON THE BASIS OF THE DECISIONS AS DISCUSSED IN PARA 5, THE APPEAL OF THE ASSESSEE IS, THEREFORE, DISMISSED AT THE VERY OUTSET. 3. A PERUSAL OF THE RELEVANT STATUTORY PROVISIONS OF THE ACT SHOWS THAT THE CIT(A) AS PER THE MANDATE OF SECTION 250(6) OF THE INCOME TAX ACT, 1961, IS NECESSAR IL Y REQUIRED TO DECIDE THE APPEAL APPLYING THE FOLLOWING PROCEDURE: - 250. (1) . (2) (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A).............................................................. ..... 3.1. ADMITTEDLY THE SAID PROCEDURE HAS NOT BEEN FOLLOWED. IT IS SEEN THAT AS PER THE RECORD THE ASSESSEE HAS PROVIDED TO THE CIT(A) WITH THE FOLLOWING ADDRESS IN ITS MEMO OF APPEAL: - SH. PRADEEP KUMAR AGGARWAL, 308, SYNDICATE HOUSE, 3, OLD ROHTAK ROAD, INDERLOK, DELHI 3 I.T.A .NO. - 4560 /DEL/201 3 3.2. IN THE MEMO OF APPEALS AS PER COLUMN NO.10 THE ASSESSEE HAS PROVIDED THE FOLLOWING ADDRESS : - PARDEEP KUMAR AGGARWAL, 3/148, FF, SUNDER VIHAR, PASCHIM V I HAR, DELHI - 110087 3.3. THUS IT APPEARS THAT THE CHANGE OF ADDRESS MAY NOT HAVE BE EN COMMUNICATED T O THE CIT(A) BY THE ASSESSEE. HOWEVER N OTWITHSTANDING THAT THE STATUTORY REQUIREMENTS OF SECTION 250(6) COULD NOT HAVE BEEN BY - PASSED BY THE CIT(A). CONSIDERING THE OVERALL FACTUAL MATRIX AND THE STATUTORY REQUIREMENTS IT IS CONSIDERED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE FILE TO THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BY ISSUING NOTICE T O THE ASSESSEE AT THE NEW ADDRESS PROVIDED BEFORE THE ITAT. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 02 ND OF MARCH 2015 . SD/ - SD/ - ( T.S.KAPOOR ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02 / 03 /201 5 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI