Vineet Oberoi, New Delhi V. ACIT, New Delhi

ITA 4855/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3544 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-07-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 24-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: R K BHALLA
• Keywords: Opportunity of being heard; Condonation of delay; Set aside

Judgement Text

I.T.A. NO.4855 /DEL/09 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H NEW DELHI) BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 4855/DEL/2009 ASSESSMENT YEAR : 2001-02 VINEET OBEROI, ACIT, PROP. M/S SOAMI SERVICE STATION, CIRCLE-23 (1), 39/11, SHAKTI NAGAR, NEW DELHI. DELHI. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AAAPO-3058-J APPELLANT BY : SHRI R.K. BHALLA, C.A. RESPONDENT BY : SHRI N.K. CHAND, SR. DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A)-XXIII, NEW DELHI DATED 16.9.2009 FOR ASSESSMENT YEAR 2001- 02, 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD CIT(A) HAS ERRED IN LAW FOR PASSING EX PARTE ORDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD CIT(A) WAS NOT JUSTIFIED FOR UPHOLDING THE ADDITION MADE B Y THE LD ASSESSING OFFICER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE 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. . I.T.A. NO4855/DEL/09 2/4 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT(A) WAS NOT JUSTIFIED FOR UPHOLDING THE ADDITION MADE BY TH E LD ASSESSING OFFICER. 3. BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY LD CIT(A) IN PARA NO.4 OF HIS ORDER THAT VARIOUS OPPORTUNITIES WERE ALLOWED TO TH E ASSESSEE BUT THE ASSESSEE IS NOT COOPERATIVE AND ON SOME PRETEXT OR THE OTHER , THE ASSESSEE HAS BEEN REQUESTING FOR ADJOURNMENT. THE APPEAL WAS FIRST FI XED FOR HEARING ON 29.7.2005 AND THE LAST HEARING WAS FIXED BY LD CIT(A) ON 15.9 .2009. ON THIS DATE ALSO, THE ASSESSEE AGAIN ASKED FOR ADJOURNMENT WHICH WAS REJE CTED BUT AFTER THAT, LD CIT(A) HAS NOT DECIDE THE APPEAL ON MERIT AND HE HA S SIMPLY DISMISSED THE APPEAL OF THE ASSESSEE ON THE BASIS THAT THE APPEAL IS TIME BARRED BY LIMITATION AND THE ASSESSEE HAS NOT PROSECUTED THE APPEAL. 4. LD AR OF THE ASSESSEE SUBMITTED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJU DICATION ON MERIT WHEREAS LD DR OF THE REVENUE SUPPORTED THE ORDER OF LD CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IT IS NOTED BY LD CIT(A) IN PARA NO. 3 OF HIS ORDER THAT THE APPEAL FILED BY THE ASSESSEE WAS LAT E. IT IS NOTED BY HIM THAT APPEAL WAS FILED ON 1.10.2004 WHEREAS THE ASSESSEE SHOULD HAVE FILED THE APPEAL BY 30.5.2004. HENCE, THERE IS DELAY OF MORE THAN FOUR MONTHS AND THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONAT ION OF DELAY AND HAS NOT EXPLAINED THE REASONS FOR SUCH DELAY. IT WAS SUBMIT TED BY THE LD AR OF THE ASSESSEE BEFORE US THAT THE ASSESSEE WAS NOT PROPER LY ADVISED AND HENCE THIS MATTER SHOULD ALSO BE RESTORED BACK AND HENCE WE RE STORE BACK THE ENTIRE MATTER TO THE FILE OF THE LD CIT(A) IN THE INTEREST OF JUS TICE. THE ASSESSEE MAY SUBMIT AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE LD CIT(A). THE ASSESSEE HAS TO EXPLAIN THE REASONS FOR DELAY AND T HEREAFTER THE LD CIT(A) SHOULD PASS FRESH ORDER REGARDING THIS ASPECT I.E. CONDONATION OF DELAY AND IF THE DELAY IS CONDONED, LD CIT(A) SHOULD DECIDE THE APPE AL OF THE ASSESSEE ON MERIT . I.T.A. NO4855/DEL/09 3/4 AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. WE WOULD LIKE TO MAKE IT CLEAR THAT THE BURDEN IS ON THE ASSESSEE TO FURNISH THE APPLICATION FOR CONDONATION OF DELAY ALONG WITH THE EXPLANATION REG ARDING THE REASONS FOR DELAY AND THIS APPLICATION ALONG WITH EVIDENCES AND EXPLA NATIONS SHOULD BE FURNISHED BY THE ASSESSEE BEFORE LD CIT(A) SUO MOTO WITHIN ON E MONTH FROM THE DATE ON WHICH THIS TRIBUNAL ORDER IS RECEIVED BY THE ASSESS EE AND IF THE ASSESSEE DOES NOT DO SO, LD CIT(A) WILL BE ENTITLED TO DRAW INFER ENCE AGAINST THE ASSESSEE AND HE CAN DECIDE THE APPEAL OF THE ASSESSEE EX PARTE Q UA THE ASSESSEE AS PER MATERIAL AVAILABLE ON RECORD. WE WOULD ALSO LIKE TO MAKE IT CLEAR THAT EVEN AFTER THE SUBMISSION BY THE ASSESSEE OF APPLICATION FOR C ONDONATION OF DELAY, THE ASSESSEE SHOULD NOT SEEK ANY ADJOURNMENT BEFORE LD CIT(A) EXCEPT COMPELLING CIRCUMSTANCES AND FOR THAT ALSO THE ASSESSEE SHOULD FURNISH NECESSARY EVIDENCE BEFORE LD CIT(A) WITH REGARD TO SUCH COMPELLING REA SONS AND IF THE ASSESSEE DOES NOT DO SO, IN THAT CASE ALSO, LD CIT(A) WILL B E ENTITLED TO DRAW INFERENCE AND CAN DECIDE THE APPEAL OF THE ASSESSEE EX PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. ONCE THE LD CIT(A) D ECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE REGARDING CONDONATION OF DELAY IN FILI NG OTHE APPEAL BEFORE HIM, THEREAFTER ALSO, THE ASSESSEE SHOULD NOT SEEK ADJOU RNMENT EXCEPT FOR COMPELLING REASONS AND LD CIT(A) SHOULD DECIDE THE ISSUE ON ME RIT AFTER HEARING BOTH SIDES. WITH THESE OBSERVATIONS, THE ORDER OF LD CIT(A) IS SET ASIDE AND THE ENTIRE MATTER IS RESTORED BACK TO HIS FILE FOR A FRESH DECISION A S PER ABOVE DISCUSSION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 12 TH JULY, 2010. SD/- SD/- (C.L. SETHI) (A.K. G ARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 12.7.2010. HMS . I.T.A. NO4855/DEL/09 4/4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).