Jagdish Singh, Ghaziabad V. ITO WARD - 1(3), Ghaziabad

ITA 4587/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6493 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Assessee Lawyers: ABHISHEK SINHA ADVCOATE
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 4587/DEL/2019 ASSESSMENT YEAR: 2008-09 JAGDISH SINGH, VS. INCOME TAX OFFICER, C/O J.S. TRADING CO., WARD-1(3), GHAZIABAD 202, 2 ND FLOOR, TEN SINGH PLAZA, RAKESH MARG, GHAZIABAD (PAN:BIGPS1025J) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. ABHISHEK SINHA, ADVCOATE REVENUE BY : MS. PARUL SINGH, SR. DR ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE IM PUGNED ORDER DATED 28.02.2019 PASSED BY THE LD. CIT(A), GHAZIABAD RELA TING TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. REJECTING CONDONATION OF DELAY WITHOUT VERIFYING TR UTHNESS. I. THE CIT(A) GHAZIABAD ERRED IN LAW ON FACTS IN REJEC TING THE APPLICATION FOR CONDONATION OF DELAY AS THE DELAY IN FILING OF THE APPEAL WAS DUE TO WRONG INTERPRETATION OF LAW A ND FACTS ON THE PART OF THE PREVIOUS COUNSEL OF THE APPELLANT. II. THE CIT(A) GHAZIABAD ERRED IN CONDONATION OF DELAY WHEREAS THE APPELLANT HAS FILED DELAY CONDONED APPLICATION DT. 20.12.2017 ALONGWITH AFFIDAVIT SOLEMNLY AFFIRMED ON 02.01.2018 FILED WITH PRESCRIBED APPEAL MEMO ON FOR M NO. 35 FILED ON 03 RD JAN, 2018. III. THE CIT(A) GHAZIABAD HAS NOT CONSIDERED THE REASONS FOR NOT FILING THE APPEAL WITHIN DUE TIME WHEREAS PROPER AN D VALID REASONS WERE MENTIONED IN PARA NO. 3 OF DELAY COND ONATION APPLICATION AS WELL AS IN PARA NO. 3 OF AFFIDAVIT OF THE APPELLANT. IV. THE APPELLANT HAS CITED VARIOUS CASES VIDE LETTER D T. 21.02.2019 BUT THE LD. CIT(A) HAS NOT CONSIDERED THOSE CASES. 2 2. NO SUFFICIENT & REASONABLE OPPORTUNITY GIVEN. I. THE LD. CIT(A) HAS NOT PROVIDED ANY OPPORTUNITY FOR HEARING TO THE APPELLANT WHILE OFFICIALLY IT WAS MENTIONED IN THE PRAYER IN RESPECT OF DELAY CONDONATION. IT IS REQUESTED TO K INDLY PROVIDED THE SUFFICIENT AND REASONABLE TIME, OPPORT UNITY FOR HEARING BEFORE TAKING ANY DECISION. IN REPLY FILED ON 21.02.2019 IN CONTINUATION OF REPLY DATED 12.02.2019 AGAINST N OTICE DT. 28.01.2019 RELATED TO F NO. CIT(A) GZB/2018-19/1528 . II. THAT THE LD. CIT(A) HAS NOT CONSIDERED THE CIRCUMST ANCES FOR NOT APPEARING BEFORE THE CONCERNING AO WHILE IGNORING T HE ILLNESS OF APPELLANT, DAUGHTER SUFFERING FROM CHRONIC DISEASE AND NEGLIGENCE OF THE PREVIOUS LAWYER BY PREVENTING BY SUFFICIENT CAUSE FOR PRODUCING THE EVIDENCE. III. THAT LD. CIT(A) HAS NOT ENTERTAINED / CONSIDERED AN Y GROUNDS OF APPEAL WHILE THE APPELLANT HAS SU-MOTTO FILED WRITT EN ARGUMENTS ALONGWITH VARIOUS EVIDENCES AND DOCUMENTS AS PER INDEX TO PAPER BOOK ON 08.03.2019 AGAINST ORDER M ADE U/S 144/147 OF I.T. ACT, 1961 WITH THE RESULT THE APPEL LANT HAS DENIED THE NATURAL JUSTICE. IV. THAT THE LD. AO CLOSED THE DOOR OF HEARING ON 14.12 .2015 WHILE THE FIRST DATE OF HEARING WAS FIXED ON 09.07.2015 U /S 142(1) OF THE I.T. ACT, 1961. V. THAT THE DEPARTMENT HAS CLAIMED THAT ALL THE NOTICE S U/S 142(1) AND U/S 144 HAS BEEN SERVED ON THE APPELLANT WHILE MOSTLY NOTICES HAS NOT BEEN SERVED ON THE APPELLANT. 3. ADDITION OF RS. 12,36,000/-. THAT THE LD. AO HAS MADE THE ADDITION OF RS. 12,3 6,000/- WITHOUT BASIS WHILE IT WAS DEPOSITED OUT OF BANK LO AN, BUSINESS INCOME, WITHDRAWING THE AMOUNT FROM TIME TO TIME AN D AGRICULTURAL INCOME ON VARIOUS DATES MOREOVER THE A PPELLANT WAS ONLY RESPONSIBLE FOR EXPLAINING AMOUNT TO RS. 1 ,24,500/- AS PER PEAK CHART OF CASH DEPOSIT INSTEAD OF RS. 12,36 ,000/-. 4. GENERAL I. TO CANCEL THE IMPUGNED DEMAND OF INCOME TAX LIABILI TY OF RS. 8,90,680/- (INCLUDING INTEREST U/S 234-B, U/S 234-A , U/S 234- D). II. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY GROUND OF APPEAL AT OR BEFORE TO HEARING OF THIS APPEAL. 3 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED T HE ISSUES IN DISPUTE AGAINST THE ASSESSEE EX PARTE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND HE REQUESTED THAT THE I SSUES IN DISPUTE MAY BE SET ASIDE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. LEARNED DR FOR THE REVENUE DID NOT RAISE ANY OBJ ECTION ON THE REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES ESPECIALLY THE IMPUGNED ORDER, I AM OF THE CONSIDERED VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS DEC IDED THE ISSUES IN DISPUTE AGAINST THE ASSESSEE BY PASSING A NON SPEAKING AND EX PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WHIC H IS CONTRARY TO LAW AND FACTS ON THE FILE AND LIABLE TO BE CANCELLED. THERE FORE, IN THE INTEREST OF JUSTICE, I AM CANCELLING THE IMPUGNED ORDER AND SET TING ASIDE THE ISSUES IN DISPUTE TO THE LEARNED FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. KEEPING IN VIEW THE NON COOPERATION OF THE ASSES SEE BEFORE THE REVENUE AUTHORITIES, I AM DIRECTING THE ASSESSEE TH ROUGH HIS COUNSEL TO APPEAR BEFORE THE LEARNED FIRST APPELLATE AUTHORITY ON 22.04.2020 AT 10:00 AM. THERE IS NO NEED TO ISSUE NOTICE TO THE ASSESSE E FOR 22.04.2020 BECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT. 4 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11/02/2020. SD/- [H.S. S IDHU] JUDICIAL MEMBER DATE: 11/02/2020 SH COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES