M/s. Sakar Fiber Board & Containers Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 478/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3210 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 478/DEL/2017 : ASSTT. YEAR : 2008 - 09 M/S SAKAR FIBER BOARD & CONTAINERS PV T. LTD., D - 248/10, LAXMI NAGAR, NEAR LAXMI NAGAR METRO STATION, NEW DELHI - 110092 VS INCOME TAX OFFICER, WARD - 22(2 ), ERSTWHILE WARD - 7(2) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAICS8188A ASSESSEE BY : SH. DEEPAK , ADV. REVENUE B Y : SH. AMRIT LAL, SR. DR DATE OF HEARING : 16 .0 5 .201 7 DATE OF PRONOUNCEMENT : 18 .05 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.11 .2016 OF LD. CIT(A) - 14 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RA ISED IN THIS APPEAL: 1. THAT IN VIEW OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) - XIV COMMITTED AN ERROR IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BACK OF THE APPELLANT WITHOUT PROVIDING REASONABLE OPPORTUNITY WHICH I S MUST IN LAW AS SETTLED BY VARIOUS COURTS FROM TIME TO TIME. 2. THAT IN VIEW OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE IT IS APPARENT THAT NO PROPER SATISFACTION AS CONTEMPLATED U/S 147/148 HAS BEEN RECORDED BY THE ASSESSING OFFICER , THEREFORE, THE A PPROVAL /SANCTIONED TO RE - OPEN THE CASE AS ACCORDED BY THE ADDL. COMMISSIONER, RANGE - 7, NEW DELHI IN FURTHERANCE OF SUCH INVALID AND IMPROPER SATISFACTION IN A MECHANICAL MANNER IS ARBITRARY, BAD IN LAW, UNJUST AND DESERVES TO BE QUASHED. ITA NO . 478 /DEL /201 7 SAKAR FIBER BOARD & CONTAINERS PVT. LTD. 2 3. THAT IN VIEW O F FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ASSUMPTION OF JURISDICTION U/S 147/148 AS MADE BY THE ASSESSING OFFICER IS INVALID IN VIEW OF REASONS RECORDED SOLELY ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING WITHOUT APPLICATION OF INDEP ENDENT MIND AND ACCORDINGLY THE RE - ASSESSMENT SO FRAMED IN FURTHERANCE OF SUCH INVALID JURISDICTION IS BAD IN LAW, ILLEGAL, VOID AB - INITIO AND DESERVES TO BE QUASHED. 4. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - XIV COMMITT ED AN ERROR IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF : - A . RS. 5,00 ,000/ - AS UNEXPLAINED CASH CREDIT B. RS. 10,000/ - AS COMMISSION PAID C. RS. 17,58,520/ - ON ACCOUNT OF SHARE PREMIUM D. R S. 7,50,000/ - AS INVESTMENT FROM UNDISCL OSED SOURCES 5. THAT THE APPELLANT CRAVE TO ADD, DELETE OR MODIFY ANY GROUND OF APPEAL AT THE TIME OF HEARING. 3 . GROUND NO. 1 RELATES TO THE REASONABLE OPPORTUNITY NOT PROVIDE D BY THE LD. CIT(A) WHILE CONFIRMING THE ADDITION MADE BY THE AO. 4 . DURING THE COURSE OF HEARING T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO PASSED THE ASSESSMENT ORDER EX - PARTE U/S 144 OF THE ACT AND THE LD. CIT(A) ALSO DECIDED THE APPEAL EX - PARTE WITHOUT PROVIDING ANY REASONABLE OPPORTUNITY OF BEING HEARD AND THAT T HE ASSESSEE HAD NOT RECEIVED ANY NOTICE FOR HEARING. THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DECIDING THE APPEAL EX - PARTE . 5 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A). ITA NO . 478 /DEL /201 7 SAKAR FIBER BOARD & CONTAINERS PVT. LTD. 3 6 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AO PASSED THE ASSESSMENT ORDER EX - PARTE AND THE LD. CIT(A) ALSO DISMISSED THE APPEAL EX - PARTE IN LIMINE AND HAD NOT DECIDED THE ISSUES RAISED BY THE ASSESSEE ON MERITS. THE LD. CIT(A) SIMPLY STATED THAT THE NOTICES WERE ISSUED TO THE ASSESSEE, HOWEVER, HE NEVER STATED THAT THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. HE SIMPLY STATED THAT NONE ATTENDED AND NO REQUEST FOR ADJOURNMENT WAS RECEIVE D. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERM PARTEM . I , THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND THE MATTER IS REMANDED BACK TO THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (O RDER PRONOUNCED IN THE COURT ON 18 /05 /2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 18 /05 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGIS TRAR