Ms Ritu Verma, New Delhi V. ACIT, New Delhi

ITA 491/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5146 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2017
• 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
• Department Lawyers: T VASANTHAN
• Keywords: Revision of order; Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 491/DEL/2017 ASSESSMENT YEAR: 2008-09 RITU VERMA, VS. ACIT, CENTRAL CIRCLE-27 36, ARADHANA ENCLAVE, JHANDEWALAN, 1 ST FLOOR, SECTOR-13, NEW DELHI R.K. PURAM, NEW DELHI (PAN: ACHPV5044J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ARVIND KUMAR, ADV. REVENUE BY : SH. T. VASANTHAN, SR. DR ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 30.11.2016 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-31, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT (A) U/S.250 OF THE I.T. ACT IS BAD IN LAW AND VOID AB INITIO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY ARRIVING AT A CONCLUSION THAT T HE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R. W.S. 147 HAS BECOME NON-EST BASED ON THE OBSERVATION THA T LD. PR. CIT.{C)-3, NEW DELHI HAS PASSED AN ORDER U/ S 263 OF THE ACT AND THAT UNDER THE SAID ORDER, LD. PR. C IT HAS 2 DIRECTED ASSESSING OFFICER TO REFRAME THE ASSESSMEN T ORDER FOR THE RELEVANT YEAR. 2.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) HAS ERRED BY DISMISSING THE APPEAL U /S 264A OF THE ACT PREFERRED BY' THE APPELLANT AGAINST THE ORDER PASSED BY ASSESSING OFFICER U/S 143(3) R.W.S. 147 WHICH IS WITHOUT ANY BASIS WHATSOEVER TO THE EFFECT THAT LD. CIT(A) HAS BEEN VAGUE AS TO ON WHICH GROUND HE HAS DISMISSED THE APPEAL. 2.2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT CARRYING OUT HIS DUTY OF PA SSING HIS JUDGMENT IN RESPECT OF THE SAID APPEAL AND HAS SHUN NED BY MERELY DISMISSING THE APPEAL STATING THAT AN ORDER U/S 263 HAS BEEN PASSED AND HENCE THE PRESENT ASSESSMENT OR DER IS NON-EST. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL ON THE GR OUND THAT APPELLANT FAILED TO FILE THE E-APPEAL AS PER C BDT CIRCULAR EVEN THOUGH THE APPELLANT DID FILE E-APPEAL ON 25/0 6/2016. AND ALSO, THE APPELLANT HAD ALREADY MANUALLY FILED THE APPEAL BEFORE THE HONORABLE CIT(A), WHICH WAS RECEI VED BY IT ON 25/04/2016. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL .EITHER BE FORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1-91 IN WHICH HE HAS AT TACHED THE COPY 3 OF THE ASSESSMENT ORDER DATED 31.3.2016 FOR AY 2008 -09 PASSED U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 TOGET HER WITH DEMAND NOTICE; REQUEST LETTER DATED 23.4.2016 BEFOR E CIT(A)-29, NEW DELHI, FOR FILING MANUAL APPEAL; COPY OF FORM N O. 35 TOGETHER WITH GROUNDS OF APPEAL FILED BY THE APPELLANT BEFOR E CIT(A)-29, NEW DELHI DATED 25.4.2016 FOR AY 2008-09; ACKNOWLEDGEME NT DATED 25.6.2016 FOR E-FILING OF APPEAL BEFORE CIT(A), DEL HI-29 IN CASE OF APPELLANT FOR AY 2008-09, TOGETHER WITH RECEIPT; EM AIL DATED 25.6.2016 RECEIVED FROM INCOME TAX INDIA E-FILING. GOV.IN TO THE APPELLANT; APPELLATE ORDER DATED 30.11.2016 PASSED BY CIT(A)-31, NEW DELHI VIDE APPEAL NO. 116/2016-17/190; ORDER U/ S. 263 OF THE INCOME TAX ACT, 1961 DATED 20.10.2016, PASSED BY PR INCIPAL CIT, CETNRAL-3, NEW DELHI; FORM NO. 36 FILED AGAINST ORD ER U/S. 263 BEFORE THE ITAT IN APPEAL NO. 6427/DEL/2016 ON 16.12.2016 TOGETHER WITH GROUNDS OF APPEAL AND TAX CHALLAN RECEIPT; CIRCULAR NO. 20/2016 DATED 26.5.2016 ISSUED BY CBDT ON THE SUBJECT OF E- FILING OF APPEALS : EXTENSION OF TIME LIMIT; JUDGMENT OF HONBLE SUPR EME COURT OF INDIA IN HOSSEIN KASAM DADA VS. STATE OF MP (1953 AIR 221); ORDER OF ITAT, KOLKATA IN GARDEN REACH SHIPBUILDERS & ENG INEERS LTD. VS. CIT 61 TAXMANN.COM 193; JUDGEMENT OF HONBLE SUPRE ME COURT OF INDIA IN STATE OF MP VS. PRADEEP KUMAR DATED 12.9.2 000 IN APPEAL (CIVIL) 4994 OF 2000; JUDGEMENT OF HONBLE SUPREME COURT OF INDIA IN CIT VS. RAI BAHADUR HARDUTROY MOTILAL CHAMARIA 66 ITR 443; JUDGMENT OF HONBLE HIGH COURT OF MADRAS IN M. LOGA NATHAN VS. ITO 4 25 TAXMANN.COM 174 AND ORDER OF ITAT, HYDERABAD IN SRI SURAKSHITHA HOMES VS. ITO IN ITA NO. 1570/HYD/2013 DATED 31.8.2015. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE DRAW MY ATTENTION TOWARDS THE PAGE NO. 53 TO 61 I.E. THE JU DGMENT OF HONBLE SUPREME COURT OF INDIA IN HOSSEIN KASAM DADA VS. S TATE OF MP (1953 AIR 221 AND PAGE NO. 70-74 I.E. THE JUDGEMENT OF HONBLE SUPREME COURT OF INDIA IN STATE OF MP VS. PRADEEP K UMAR DATED 12.9.2000 IN APPEAL (CIVIL) 4994 OF 2000 AND REQUES TED THAT IN VIEW OF THE AFORESAID JUDGMENTS OF THE HONBLE SUPREME C OURT, THE MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO D ECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW. I FIND THAT LD . COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING PAGES 1- 91 IN WHICH HE HAS ATTACHED THE COPY OF THE ASSESSMENT ORDER DATED 31.3.2016 FOR AY 2008-09 PASSED U/S. 143(3) R.W.S. 147 OF THE INC OME TAX ACT, 1961 TOGETHER WITH DEMAND NOTICE; REQUEST LETTER DA TED 23.4.2016 BEFORE CIT(A)-29, NEW DELHI, FOR FILING MANUAL APPE AL; COPY OF FORM NO. 35 TOGETHER WITH GROUNDS OF APPEAL FILED BY THE APPELLANT BEFORE CIT(A)-29, NEW DELHI DATED 25.4.2016 FOR AY 2008-09 ; ACKNOWLEDGEMENT DATED 25.6.2016 FOR E-FILING OF APP EAL BEFORE 5 CIT(A), DELHI-29 IN CASE OF APPELLANT FOR AY 2008-0 9, TOGETHER WITH RECEIPT; EMAIL DATED 25.6.2016 RECEIVED FROM INCOM E TAX INDIA E- FILING.GOV.IN TO THE APPELLANT; APPELLATE ORDER DAT ED 30.11.2016 PASSED BY CIT(A)-31, NEW DELHI VIDE APPEAL NO. 116/ 2016-17/190; ORDER U/S. 263 OF THE INCOME TAX ACT, 1961 DATED 20 .10.2016, PASSED BY PRINCIPAL CIT, CETNRAL-3, NEW DELHI; FORM NO. 36 FILED AGAINST ORDER U/S. 263 BEFORE THE ITAT IN APPEAL NO . 6427/DEL/2016 ON 16.12.2016 TOGETHER WITH GROUNDS OF APPEAL AND T AX CHALLAN RECEIPT; CIRCULAR NO. 20/2016 DATED 26.5.2016 ISSUE D BY CBDT ON THE SUBJECT OF E-FILING OF APPEALS : EXTENSION OF T IME LIMIT; JUDGMENT OF HONBLE SUPREME COURT OF INDIA IN HOSSEIN KASAM DADA VS. STATE OF MP (1953 AIR 221); ORDER OF ITAT, KOLKATA IN GAR DEN REACH SHIPBUILDERS & ENGINEERS LTD. VS. CIT 61 TAXMANN.CO M 193; JUDGEMENT OF HONBLE SUPREME COURT OF INDIA IN STAT E OF MP VS. PRADEEP KUMAR DATED 12.9.2000 IN APPEAL (CIVIL) 499 4 OF 2000; JUDGEMENT OF HONBLE SUPREME COURT OF INDIA IN CIT VS. RAI BAHADUR HARDUTROY MOTILAL CHAMARIA 66 ITR 443; JUDGMENT OF HONBLE HIGH COURT OF MADRAS IN M. LOGANATHAN VS. ITO 25 TAXMANN .COM 174 AND ORDER OF ITAT, HYDERABAD IN SRI SURAKSHITHA HOMES V S. ITO IN ITA NO. 1570/HYD/2013 DATED 31.8.2015. I HAVE ALSO PE RUSED THE PAGE NO. 53 TO 61 I.E. THE JUDGMENT OF HONBLE SUPREME C OURT OF INDIA IN HOSSEIN KASAM DADA VS. STATE OF MP (1953 AIR 221 AN D THE PAGE NO. 70-74 I.E. THE JUDGEMENT OF HONBLE SUPREME COU RT OF INDIA IN STATE OF MP VS. PRADEEP KUMAR DATED 12.9.2000 IN AP PEAL (CIVIL) 6 4994 OF 2000. I FURTHER PERUSED THE FINDING OF THE LD. CIT(A) GIVEN IN THE IMPUGNED ORDER DATED 30.11.2016 VIDE PARA NO. 7 & 8 WHEREIN THE LD. CIT(A) HAS OBSERVED AS UNDER:- 7. I HAVE CONSIDERED THE FINDINGS RECORDED BY THE LD. AO AS PER THE ASSESSMENT ORDERS, THE IMPUGNED PENALTY ORDERS, THE FACTS OF THE CASE ON RECORD AND THE SUBMISSIONS MADE BY THE APPELLANT. AS PER ORDER U/S. 263, LD. PR. CIT(C)-3, NEW DELHI HAS DIRECTED THE AO TO REFRAME THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09 IN ACCORDANCE WITH THE PROVISIONS OF LAW AND THE DIRECTIONS GIVEN IN THE SAID ORDER. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER BECOMES NON-EST AND AS A RESULT THE APPEAL FILED AGAINST THE SAME IS RENDERED INFRUCTUOUS AND ACCORDINGLY, LIABLE TO BE DISMISSED. 8. IT MAY FURTHER BE MENTIONED HERE THAT RULE 45 OF THE INCOME TAX RULES, 1962, MANDATE COMPULSORY E-FILING OF APPEALS BEFORE THE COMMISSIONERS OF INCOME TAX (APPEALS) W.E.F. 1.3.2016 IN RESPECT OF PERSONS WHO ARE REQUIRED TO FURNISH RETURN OF INCOME ELECTRONICALLY. THE CBDT VIDE CIRCULAR NO. 20/2016 DATED 26.5.2016, HAD EXTENDED THE TIME LIMIT FOR FILING OF SUCH APPEALS WHICH WERE DUE TO BE FILED BY 15.5.2016, UPTO 7 15.6.2016. ALL E-APPEALS FILED WITHIN THIS EXTENDED PERIOD WOULD BE TREATED AS APPEALS FILED IN TIME. HOWEVER, ADMITTEDLY THE APPELLANT DID NOT FILE THE E-APPEAL FOR THE YEAR UNDER CONSIDERATION EVEN IN THE EXTENDED PERIOD. THEREFORE, IN THE ABSENCE OF THEE-APPEAL, THE AFORESAID APPEAL IS NOT-EST AND ON THIS GROUND ALONE THE SAME IS LIABLE TO BE DISMISSED. 6.1 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AS EXPLAINED ABOVE AND IN VIEW OF THE JUDGMENTS OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF HOSSEIN KASA M DADA VS. STATE OF MP (1953 AIR 221) PLACED AT PAGE NO. 53-61 OF T HE PAPER BOOK AND THE JUDGEMENT OF HONBLE SUPREME COURT OF INDIA IN STATE OF MP VS. PRADEEP KUMAR DATED 12.9.2000 IN APPEAL (CIVIL) 4994 OF 2000 AT 70-74 OF THE PAPER BOOK, I DIRECT THE LD. CIT(A) TO CONDONE THE DELAY IN DISPUTE. AND ALSO IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE APPEAL ON MERIT AND PASS A SPEAKING ORDER, KEEPING IN VIEW OF THE JUDG MENT OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF HOSS EIN KASAM DADA VS. STATE OF MP (1953 AIR 221) AND THE JUDGEMENT OF HONBLE 8 SUPREME COURT OF INDIA IN STATE OF MP VS. PRADEEP K UMAR DATED 12.9.2000 IN APPEAL (CIVIL) 4994 OF 2000. THE ASSE SSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE LD. CIT(A) IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND PR ODUCE ALL THE DOCUMENTS/EVIDENCES FILED BEFORE THE LD. CIT(A) TO SUBSTANTIATE HER CASE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 17-08-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 17-08-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.