M/s. Naharpuria Impex Pvt. Ltd., Delhi V. ITO, New Delhi

ITA 4597/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6541 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 03-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: B L GUPTA ITP
• Keywords: Opportunity of being heard

Judgement Text

I.T.A .NO.-4597/DEL/2016 NAHARPURIA IMPEX PVT.LTD. VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4597/DEL/2016 (ASSESSMENT YEAR-2007-08) NAHARPURIA IMPEX PVT.LTD., A-1/107, SECTOR-7, ROHINI, DELHI-110085. PAN-AACCN1077B ( APPELLANT) VS ITO, WARD-13(1), NEW DELHI. (RESPONDENT) ASSESSEE BY SH.B.L.GUPTA, ITP REVENUE BY SH.F.R.MEENA, SR.DR DATE OF HEARING 03 . 11 .2016 DATE OF PRONOUNCEMENT 21.12.2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER PASSED IN APPEAL NO.240/14-15/CIT(A)-42 DATED NIL PERTAINING TO 2007-08 AY ON VARIOUS GROUNDS. THE ASSESSEE CHALLENGED THE JURISDICTION OF THE AO TO MAKE THE ADDITIONS AND THE ACTION OF THE CIT(A) IN UPHOLDING THE JURISDICTION AND THE ADDITION ON MERITS. 2. BOTH THE PARTIES HAVE BEEN HEARD. THE LD.AR CAR RYING US THROUGH THE IMPUGNED ORDER SUBMITTED THAT THE CONCLUSION DRAWN BY THE CIT(A) A T PAGE 8 PARA 6.4 ON FACTS IS INCORRECT AND HAS NOT TAKEN INTO CONSIDERATION, THE COMPLETE GAM UT OF SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE. A PERUSAL OF THE IMPUGNED ORDER PAGE 7, IT WAS SUBMITTED WOULD SHOW THAT REFERENCE THERETO IS MADE TO THE FRESH EVIDENCES FI LED BY THE ASSESSEE. A PERUSAL OF PARA 3 PAGE 2 OF THE IMPUGNED ORDER WHICH PRESUMABLY IS PA SSED SOMETIME AFTER THE LAST DATE OF HEARING I.E. 04.04.2016 AS MENTIONED ON PAGE 1 OF T HE IMPUGNED ORDER, IT WAS SUBMITTED WOULD SHOW THAT ORDER HAS BEEN PASSED ON THE BASIS OF WRI TTEN AND ORAL SUBMISSION DATED 24.07.2015. RELIANCE, IT WAS SUBMITTED HAS BEEN PLACED ON THE R EMAND REPORT OF THE AO AND TIME HAD BEEN SOUGHT BY THE ASSESSEE TO EFFECTIVELY REBUT TH E SAME IN VIEW OF INCAPACITY OF THE LD.AR ENGAGED BY THE ASSESSEE WHO HAD UNDERGONE A CATARAC T OPERATION. THIS FACT, IT WAS SUBMITTED WAS EVIDENT FROM PARA 5.5.2 OF THE IMPUGNED ORDER W HICH WOULD SHOW THAT ULTIMATELY THE APPEAL WAS DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD WHEREIN THE EFFECTIVE OPPORTUNITY OF REBUTTING THE REMAND REPORT RELIED UPON BY THE AO W AS NOT MADE AVAILABLE TO THE ASSESSEE. PAGE 2 OF 2 I.T.A .NO.-4597/DEL/2016 NAHARPURIA IMPEX PVT.LTD. VS ITO THUS, INFACT THE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. ACCORDINGLY, IT WAS HIS PRAYER THAT THE ISSUE BE RESTORED. 3. CONSIDERING THE MATERIAL AVAILABLE ON RECORD, TH E LD.SR.DR REQUESTED THAT THE ISSUE BE RESTORED TO THE AO AND NOT TO THE CIT(A) AS ADMITTE DLY FRESH EVIDENCES HAVE BEEN FILED WHICH NEED TO BE CONSIDERED BY THE AO. THE LD.AR ALSO SU PPORTED THE SAID PRAYER AND STATED RESTORING THE ISSUE TO THE FILE OF THE CIT(A) WOULD NOT SERVE ANY PURPOSE AS FRESH EVIDENCES NEED TO BE CONSIDERED BY THE AO. ACCORDINGLY TAKIN G INTO CONSIDERATION THE SUBMISSION OF THE PARTIES BEFORE THE BENCH AND CONSIDERING THE MATERI AL AVAILABLE ON RECORD, I AM OF THE VIEW THAT THE PRAYER OF THE PARTIES DESERVES TO BE ACCEPTED. THE IMPUGNED ORDER IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE HAVING BEEN PASSED WI THOUT AN EFFECTIVE OPPORTUNITY OF BEING HEARD IS SET ASIDE AND BOTH THE ISSUES I.E. THE JUR ISDICTIONAL ISSUE AS WELL AS THE ADDITIONS ON MERIT ARE RESTORED BACK TO THE AO WITH THE DIRECTIO N TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI