M/s. Indiamart Intermesh Ltd., New Delhi V. DCIT, New Delhi

ITA 4730/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2956 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. N.K.SAINI, ACCOUNTANT MEMBER AND SH. K.N.CHARY, JUDICI AL MEMBER ITA NO. 4730/DEL./2016 : ASSTT. YEAR : 2012-13 INDIAMART INTERMESH LTD. 1 ST FLOOR, 29-DARYAGANJ, NETAJI SUBHASH MARG NEW DELHI PAN: AAACI5853L VS DCIT CIRCLE-12(1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. ARUN KUMAR YADAV, S R. DR DATE OF HEARING : 20.12.2017 DATE OF PRONOUNCEMENT : 26.12.2017 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 11.07.2016 OF THE CIT(A), NEW DELHI. FOLLOWING GROUNDS HAVE B EEN RAISED IN THIS APPEAL: 1. THAT THE ORDER OF CIT(A) DISMISSING THE ASSESSE ES APPEAL IS BAD IN LAW. 2. IN THE FACTS AND THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE ASSESSEE WITHOUT CONSIDERING THE GROUNDS ON MERITS WHICH IS UNJUSTIFIED, ILLEGAL AND AGAINST TH E PROVISION OF THE ACT. 3. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL WITHOUT VERIFYING THE FACTS A S TO WHETHER THE ASSESSEE HAD ACTUALLY RECEIVED THE NOTICE OF HEARING OR NOT AND WITHOUT GIVING THE ITA NO.4730/DEL/2016 2 PROPER OPPORTUNITY TO APPELLANT, WHICH IS UNJUSTIFI ED, BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 4. WITHOUT PREJUDICE TO ABOVE, THE CIT(A) ERRED I N LAW AND FACTS IN NOT ADJUDICATING THE ISSUES RAISED BEFORE HIM ON MERITS WITH REGARD TO ESOP EXPENSES ON EX-PARTE BASIS. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE E-FILED ITS RETURN OF INCOME ON 22.09.2012 DECLARING TOTAL LOSS AT RS. 58,92,55, 842/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON THE CASE WAS SELECTED FOR SCRUTINY. THE A O MADE AN ADDITION OF RS. 32,42,741/- ON ACCOUNT OF DISALLOWANCE OF EMPLOYEE STOCK OPTION PLAN COMPENSATION. 3. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING A S UNDER :- 2. THE CASE WAS FIXED FOR HEARING ON 16/11/20 15 AND THE NOTICE WAS SERVED BY THE SPEED POST ON THE APPELLANT. NOBODY A PPEARED ON THAT DATE OR AFTER THAT SO FAR. IT IS CLEAR THAT THE APPELLANT I S NOT INTERESTED IN PURSUING THE MATTER. NOW THE ASSESSEE IS IN APPEAL. 4. DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. WE, TH EREFORE, PROCEEDED EX- PARTE QUA THE ASSESSEE AND THE APPEAL HAS BEEN DISPOSED O FF, AFTER HEARING THE LD. DR WHO SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND STATED THAT AS THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A), THEREFORE, THE APPEAL WAS RIGHTLY DISMISSED. 5. WE HAVE CONSIDERED THE SUBMISSION OF THE LD. DR AND THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOT ICED THAT THE LD. CIT(A) DISMISSED THE APPEAL BY PASSING THE IMPUGNED ORDER ON 11.07.2016 BY OBSERVING THAT THE CASE WAS FIXED FOR HEARING ON 16.11.2015 A ND THE NOTICE WAS SERVED BY THE SPEED POST ON THE ASSESSEE. HOWEVER, NOTHING I S BROUGHT ON RECORD TO ITA NO.4730/DEL/2016 3 SUBSTANTIATE THAT BEFORE PASSING THE IMPUGNED ORDER ON 11.07.2016, ANY NOTICE WAS SERVED UPON THE ASSESSEE FOR HEARING ON THE SAI D DATE. IT IS ALSO NOTICED THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUES RAISE D BY THE ASSESSEE ON MERIT. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEAR D AS PER THE MAXIM AUDI ALTERAM PERTAM. WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH INACCORDANCE WITH LAW, AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 26/12/2017) . SD/- SD/- (K.N.CHARY) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:26 / 12/2017 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITA NO.4730/DEL/2016 4 DATE INITIAL 1. DRAFT DICTATED ON 21.12.2017 2. DRAFT PLACED BEFORE AUTHOR 22.12.2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.