Sartaj Hotels apartments and Villas Pvt. Ltd., New Delhi V. Addll. CIT, New Delhi

ITA 4806/DEL/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5568 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 21-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: P N CHAWLA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE SHRI I. P. BANSAL, JM SHRI K. D. RANJ AN, AM I. T. APPEAL NO. 4806 (DEL) OF 2009. ASSESSMENT YEAR : 2006-07. M/S. SARTAJ HOTELS APARTMENTS ADDL. COMMISSIONER OF INCOME-TAX , AND VILLAS PVT. LTD., CELEBRATIONS GARDEN, NH - 8, VS. R A N G E : 7, ADJOINING SHIV MURTI, RANGPURI, N E W D E L H I. N E W D E L H I. P A N / G I R NO. AAB CS 1580 P. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI P. N. CHAWLA, C. A.; DEPARTMENT BY : SHRI B. K. GUPTA, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 20 06-07 ARISES OUT OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-X, NEW DEL HI. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS FOLLOWS :- ' 1. THAT THE ORDER OF THE LD. CIT (APPEALS) IS CONTRARY TO LAW AND FACTS ON RECORDS; 2. THAT THE LD. CIT (APPEALS) HAS WRONG LY REJECTED THE CONTENTION OF THE ASSESSEE THAT THE INCOME OF RS.20,90,640/- SHOW N AS AGRICULTURAL 2 I. T. APPEAL NO. 4806 (DEL) OF 2009. INCOME I.E. SALE OF FLOWER. A SUM OF RS.2,25,700/- WAS SPENT AS EXPENSES WHICH WAS ALSO NOT ALLOWED. THUS, TOTAL INCOME FRO M AGRICULTURAL WAS RS.18,64,940/- INSTEAD OF RS.20,90,640/- WAS DISALL OWED BY THE LD. CIT (APPEALS) IS HIGHLY ARBITRARY, EXCESSIVE AND UNJUST ; 3. THAT THE LAND USE OF THE AGRICULTURAL LAND WAS CHANGED TO COMMERCIAL AND IT WAS NOT NECESSARY TO INFORM THE P ATWARI TO COMPLETE THE FARD AND BASING THE ORDER ON THE FARD IS WRONG, UNJ UST AND AGAINST THE FACTS OF THE CASE; 4. THAT THE REQUEST OF THE ASSESSEE TO ADDL. CIT T O DEPUTE THE INCOME-TAX INSPECTOR TO VISIT THE PREMISES WAS NOT TAKEN CARE OF AND THE CLAIM OF THE ASSESSEE WAS REJECTED WITHOUT PROVIDIN G OPPORTUNITY, IS ARBITRARY, UNJUST AND ILLEGAL; 5. THAT THE LD. CIT (APPEALS) HAS WRONG LY REJECTED THE APPEAL OF THE ASSESSEE WITHOUT PROVIDING OPPORTUNITY OF BEING HEA RD AS THE DATE OF HEARING WAS FIXED ON 28/10/2009 AND WAS ADJOURNED T O 30/10/2009. ON THAT DATE THE LD. CIT (APPEALS) WAS NOT PRESENT AND THE ADVOCATE'S MUNSHI WAS VISITING THE OFFICE OF THE LD. CIT (APPEALS) RE GULARLY AND IN SPITE OF THIS, THE CASE HAS BEEN COMPLETED EX-PARTE WITHOUT HEARING THE APPEAL OF THE ASSESSEE. ' 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE APPEAL WAS FIXED FOR HEARING ON 30TH OCTOBER, 2009. THE LD. CIT (AP PEALS) WAS NOT PRESENT ON THIS DATE. HOWEVER, EX-PARTE ORDER HAS BEEN MADE ON 27TH OCTOB ER, 2009. THE LD. CIT (A) HAS, HOWEVER, DECIDED THE ISSUE ON THE BASIS OF LETTER D ATED 19TH MAY, 2009. SINCE THE LD. CIT (A) HAS PASSED ORDER WITHOUT HEARING THE ASSESSEE, IT H AS BEEN REQUESTED THAT THE APPEAL MAY BE SET ASIDE TO THE FILE OF THE LD. CIT (A) FOR DECIDI NG THE APPEAL AFTER AFFORDING THE ASSESSEE, A REASONABLE OPPORTUNITY OF BEING HEARD. ON THE OTHE R HAND, THE LD. SR. DR SUPPORTED THE ORDER OF THE LD. CIT (APPEALS). 3 I. T. APPEAL NO. 4806 (DEL) OF 2009. 4. WE HAVE HEARD BOTH THE PARTIES. FROM THE APPELL ATE ORDER, WE FIND THAT THE LD. CIT (APPEALS) HAS DECIDED THE APPEAL ON THE BASIS OF LE TTER DATED 19/05/2009 WHEREIN IT HAS BEEN STATED THAT 'PRIOR TO THAT THE ASSESSEE HAS NOT SHO WN ANY AGRICULTURAL INCOME'. THE CONTENTION OF THE ASSESSEE IS THAT THE CASE WAS ADJOURNED FROM 28TH OCTOBER, 2009 TO 30TH OCTOBER, 2009. HOWEVER, FROM THE APPELLATE ORDER, WE FIND THAT THE DATE OF FINAL HEARING HAS BEEN MENTIONED AS 27TH OCTOBER, 2009. FROM THESE FACTS IT IS APPA RENT THAT THE LD. CIT (A) HAS DECIDED THE APPEAL EX-PARTE WITHOUT PROVIDING PROPER OPPORTUNIT Y OF BEING HEARD. WE, THEREFORE, SET ASIDE THE APPEAL TO THE FILE OF THE LD. CIT (A) WITH THE DIRECTION THAT PROPER OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE TO EXPLAIN HIS CASE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED, FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 24TH FEBRUARY, 2010. SD/- SD/- [ I. P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24TH FEBRUARY, 2010. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT. 4 I. T. APPEAL NO. 4806 (DEL) OF 2009. 5 I. T. APPEAL NO. 4806 (DEL) OF 2009.