Vineet Oberoi, Delhi V. ITO, New Delhi

ITA 4658/DEL/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5768 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 29-03-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 09-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GANPATI BHAT
• Assessee Lawyers: R K BHALLA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `H NEW DELHI BEFORE SHRI A.D. JAIN AND SHRI K.G. BANSAL ITA NO. 4658(DEL)2009 ASSESSMENT YEAR: 2002-03 VINEET OBEROI, PROP. M/S. SOAMI INCOME TAX OFFICER, WARD 23(3), SERVICE STATION, C/O M/S. KUMAR V. NEW DEL HI. BHALLA & CO., 39/11 SHAKTI NAGAR, DELHI-110007. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI R.K. BHALLA, CA RESPONDENT BY: SHRI GANPATI BHAT, SR. DR ORDER PER A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 002-03 TAKING THE FOLLOWING GROUNDS:- 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS ERRED FOR PASSING THE EX-PARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) WAS NOT JUSTIFIED FOR NOT PROVIDING AN OPPORTUNITY TO REPRE SENT THE CASE FOR 15.9.2009 WHEN THE COUNSEL WAS OUTSTATION IN CONNEC TION OF AN APPEAL. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED FOR UPHOLDING THE ADDITION OF RS. 1,67,302/-. ITA 4658(DEL)09 2 2. VIDE ORDER DATED 16.09.2009 THE LD. CIT(A) REJEC TED THE ASSESSEES APPLICATION FOR ADJOURNMENT AND DISMISSED THE ASSES SEES APPEAL. WHILE DOING SO, IT WAS OBSERVED, INTER ALIA, AS FOLLOWS:- 4. HOWEVER, BEFORE I PROCEED TO ADJUDICATE, IT IS MENTIONED THAT THE APPEAL WAS FILED ON 13.4.05, VIDE RECEIPT NO. 50. NOTICE FOR HEARING WAS ISSUED FOR THE FIRST TIME ON 10.11.05, FIXING T HE CASE FOR HEARING ON 28.11.05. SHRI S. SINGH, ADVOCATE, APPEARED AN D REQUESTED FOR ADJOURNMENT. THE CASE WAS ADJOURNED TO 11.1.06. NONE ATTENDED ON THE SAID DATE. CASE WAS REFIXED FOR 10.2.06, ON WH ICH DATE THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE AGAIN REQ UESTED FOR ADJOURNMENT WHICH WAS ACCEPTED FOR 22.2.06. THE C ASE WAS AGAIN ADJOURNED TO 22.3.06, WHEN NONE APPEARED. NOW THE CASE WAS REFIXED FOR 13.7.06 WHICH WAS AGAIN ADJOURNED TO 23.8.06, O N WHICH DATE NONE ATTENDED. NOTICE WAS AGAIN ISSUED ON 18.8.08, FIXING THE CASE FOR 3.9.08. AN ADJOURNMENT PETITION WAS FILED. LAST OPPORTUNITY WAS GIVEN TO THE ASSESSEE. SHRI R.K. BHALLA, CA APPEA RED ON 18.11.08, WHEN AN ADJOURNMENT PETITION WAS FILED. ON THAT DA TE INSPECTION OF APPELLATE FOLDER WAS ALSO REQUESTED WHICH WAS ALLOW ED. CASE WAS REFIXED FOR 29.5.09, ON WHICH DATE ANOTHER ADJOURN MENT PETITION WAS FILED STATING THAT THE LEARNED AUTHORISED REPRESENT ATIVE OF THE ASSESSEE WAS ENGAGED IN LLB EXAMINATION. IT WAS RE QUESTED THAT THE CASE BE FIXED AFTER 11.6.09. ACCORDINGLY ANOTHER DATE WAS FIXED FOR 15.9.09. ON THE SAID DATE, ANOTHER ADJOURNMENT PET ITION WAS FILED STATING THAT THE LD. AUTHORISED REPRESENTATIVE WAS OUT OF DELHI. THIS ADJOURNMENT PETITION WAS REJECTED. 5. FROM THE DISCUSSIONS ABOVE, IT WILL BE CRYSTAL C LEAR THAT INNUMERABLE OPPORTUNITIES WERE GIVEN TO THE ASSESSE E. IT IS UNFORTUNATE THAT THERE HAS BEEN NO COMPLIANCE. IT IS CLEAR, THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE MATTER I N CIT V. B.N. BHATTACHARYA [1977] 118 ITR 461(SC), THE HONBLE AP EX COURT WHILE DEALING WITH THE ISSUE OF PROSECUTION OF APPEAL HAS STATED THAT PREFERRING AN APPEAL MEANS MORE THAN FORMALLY FILL ING IT BUT EFFECTIVELY PURSUING IT. THE DELHI TRIBUNAL IN CI T V. MULTIPLAN INDIA PVT. LTD. AS REPORTED IN 38 ITD 320(DEL) WHEN FACED WITH A SIMILAR ITA 4658(DEL)09 3 SITUATION OF NON PROSECUTION OF APPEAL DISMISSED TH E APPEAL OF REVENUE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTEND ED THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE ASSESSEES APPEAL EX-PA RTE QUA THE ASSESSEE; THAT THE LEARNED CIT(A) HAS ERRED IN OBSERVING THAT THE ASSESSEE WAS NOT INTERESTED IN PURSUING THE MATTER; THAT THE ASSESSE E WAS VERY MUCH INTERESTED IN PURSUING THE APPEAL BEFORE THE LD. CIT(A); THAT IT WAS DUE TO UNAVOIDABLE CIRCUMSTANCES THAT THE ADJOURNMENT HAD TO BE SOUGHT ; THAT ON THE DAY THE APPEAL WAS FIXED BEFORE THE LD. CIT(A), I.E., ON 15 .9.2009, THE LEARNED COUNSEL FOR THE ASSESSEE HAD TO GO TO MANGALORE TO ATTEND A CASE THERE; THAT AS SUCH, AN APPLICATION FOR ADJOURNMENT WAS SENT TO TH E LD. CIT(A); THAT THE LEARNED COUNSEL HAD ALSO SENT A TELEGRAM FROM MUMBA I AIR PORT TO THE LD. CIT(A), ON HIS WAY TO MANGALORE; AND THAT THE LEAR NED COUNSEL WAS THUS PREVENTED BY SUFFICIENT CAUSE FROM ATTENDING THE C ASE BEFORE THE LD. CIT(A) ON BEHALF OF THE ASSESSEE. 4. IN SUPPORT OF THE ABOVE CONTENTIONS, THE LEARNED COUNSEL HAS PLACED ON RECORD HIS AFFIDAVIT, COPIES OF HIS AIR TICKETS FRO M DELHI TO MUMBAI AND MUMBAI TO MANGALORE AND BACK, HIS BOARDING PASSES A ND POSTAL RECEIPT DATED 15.9.2009 STATED TO BE FOR THE DISPATCH OF THE AFOR EMENTIONED TELEGRAM FROM MUMBAI TO THE CIT(A) AT NEW DELHI. ITA 4658(DEL)09 4 5. IN VIEW OF THE ABOVE, IT IS SEEN THAT ON 15.9.20 09, I.E., THE DATE OF HEARING OF THE ASSESSEES APPEAL BEFORE THE LD. CIT (A), THE LEARNED COUNSEL FOR THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM APPEARING BEFORE THE LD. CIT(A) TO ATTEND THE HEARING OF THE ASSESSEES APPEAL. 6. THE MATTER IS, ACCORDINGLY, REMITTED TO THE FILE OF THE LD. CIT(A), TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW ON AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL, NO D OUBT, COOPERATE IN THE APPEAL PROCEEDINGS BEFORE THE LD. CIT(A). 7. SINCE THE MATTER IS BEING REMITTED TO THE FILE O F THE LD. CIT(A) AS ABOVE, AT THIS STAGE, THE MERITS OF THE APPEAL ARE NOT BEING GONE INTO. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.3.2010. SD/- SD/- (K.G. BANSAL) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.03.2010 *RM ITA 4658(DEL)09 5 COPY FORWARDED TO: 1. VINEET OBEROI, PROP. M/S. SOAMI SERVICE STATION, C/O M/S. KUMAR BHALLA & CO., 39/11 SHAKTI NAGAR, DELHI-110007. 2. INCOME TAX OFFICER, WARD 23(3), NEW DELHI. 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR