Sh. Ramesh Bhatia, Delhi V. ITO, New Delhi

ITA 4929/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4134 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 15-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SM C - II I , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 4929 /DEL/2016 : ASSTT. YEAR : 2009 - 1 0 SH. RAMESH BHATIA, 1058/14, SECTOR - 14, GURGAON - 122 001 VS INCOME TAX OFFICER, WARD - 71 ( 2 ) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A BBPB8740J ASSESSEE BY : SH. RAJIV SAXENA, ADV. REVENUE BY : SH. S. K. JAIN , SR. DR DATE OF HEARING : 15.11 .201 6 DATE OF PRONOUNCEMENT : 17 . 11 . 201 6 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11.12.2015 OF LD. CIT(A) - 21 , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT EX PARTE AND WITHOUT ADJUDICATING THE GROUNDS OF APPEAL RAISED IN THE MEMO OF APPEAL AS SUCH, ORDER PASSED BEING IN CONTRAVENTION OF PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, IS LIABLE TO BE SET ASIDE FOR ADJUDICATING THE GROUNDS OF APPEAL RAISED BEFORE HIM. 1.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT AS PER PROVISIONS CONTAINED ITA NO. 4929 /DEL /201 6 RAMESH BHATIA 2 IN SEC . 250(6) OF TH E IT ACT, IT WAS THE DUTY OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) TO STATE THE POINTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND THE REASONS FOR SUCH DECISION. 1.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DISPOSING OFF THE APPEAL EX - PARTE WHICH IS CLEARLY AGAINST THE PRINCIPLES OF NATURAL JUSTICE, AND HENCE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS LIABLE TO BE SET ASIDE. 2. THAT THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN LAW AND ON FACT IN DISPOSING OF THE APPEAL EX - PARTE AND THEREBY UPHOLDING THE ORDER OF ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT AT AN INCOME OF RS. 17,09,453/ - AS AGAINST THE RETURNED INCOME OF RS. 1,54,239/ - . 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN FAILING TO APPRECIATE THAT ADDITIONS MADE IN THE ORDER OF ASSESSMENT OF RS. 15,55,214/ - IS UNSUSTAINABLE IN LAW AND IS LIABLE TO BE DELETED. 3 . THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE DISMISSAL OF THE APPEAL EX - PARTE BY THE LD. CIT(A) . 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2010 DECLARING AN INCOME OF RS.1 ,54,239 / - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME ITA NO. 4929 /DEL /201 6 RAMESH BHATIA 3 TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. T HE AO OBSERVED AT PAGE NO. 2 OF THE ASSESSMENT ORDER DATED 21.12.2011 THAT THE ASSESSEE WAS ASKED VIDE ORDER SHEET DATED 08.11.2011 TO PROVIDE EV IDENCE AND SO URCE OF CASH DEPOSITED, ON 15.11.2011 WHEN THE CASE WAS FIXED FOR HEAR ING. ON THE SAID DATE NEITHER ANY BODY ATTENDED NOR INFORMATIONS WERE FILED. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.17,09,453/ - BY MAKING THE VARIOUS ADDITIONS WHICH INCLUDED A SUM OF RS.15,53,126/ - ADDED U/S 68 OF THE ACT. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX - PARTE IN LIMINE. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OU TSET SATED THAT NEITHER THE AO NOR THE LD. CIT(A) APPRECIATED THE FACTS IN RIGHT PERSPECTIVE AND DID NOT CONSIDER THE VARIOUS DOCUMENTS FURNISHED BY THE ASSESSEE. HE REQUESTED TO SET ASIDE THE CASE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFTER PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN HIS RIVAL SUBMISSIONS THE LD. DR OPPOSED THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. ITA NO. 4929 /DEL /201 6 RAMESH BHATIA 4 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE M ATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE IN LIMINE AND HAD NOT DISCUSSED THE ISSUE S ON MERIT. SIMILARLY, THE AO HAS ALSO NOT PROVIDED DUE AND REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD CONDEMNED UNHEARD AS PER MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE DEEM IT APPROPRIATE TO REMAND THIS ISSUE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRON OUNCED IN THE CO URT ON 17 /11 /2016) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 17 /11 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. R ESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR