State Bank of Bikaner & Jaipur, New Delhi V. ITO, New Delhi

ITA 4936/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91091 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-05-2015
• Assessment Year: misc
• Appeal Filed On: 17-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: SHANTI PRASHAD
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law

Judgement Text

ITA NO. 4936/ DEL/ 2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO . 4936/DEL/2012 A.Y. : 200 9 - 10 STATE BANK OF BIKANER & JAIPUR, NEW DELHI HOUSE, 27, BARAKHAMBA ROAD, NEW DELHI 110 001 VS. INCOME TAX OFFICER TDS WARD 51(3), DELHI 110 0092 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SHANTI PRASHAD, CA DEPARTMENT BY : SH. B.R.R. KUMAR, SR. DR DATE OF HEARING: 18 .0 5 .2015 DATE OF ORDER : 2 9 . 0 5 .2015 ORDER PER A.T. VARKEY : JM THIS APPEAL FILED BY THE ASSESSEE , ARISES OUT OF THE ORDER PASSED BY THE LD. CIT(A) - XX X , NEW DELHI DATED 6 . 7 .20 1 2 PERTAINING TO ASSESSMENT YEAR 20 0 9 - 10 AND RAISED THE FOLLOWING GROUNDS: - 1) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN PASSING THE ORDER ULS 250 OF THE ACT IN THE INSTANT CASE WITHOUT ALLOWING ANY ITA NO. 4936/ DEL/ 2012 2 OPPORTUNITY OF HEARING TO THE APPELLA T ASSESSEE. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN D ISPOSING OFF THE APPEAL WITHOUT GIVING ANY NOTICE OF HEARING TO THE ASSESSEE AND WITHOUT HEARING THE ASSESSEE. 2) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN HOLDING THAT THE APPEAL FILED BY THE ASSESSEE WAS 'INFRUCTUOUS AND REDUNDANT'. 3) THAT THE LEARN ED CIT (APPEALS) HAVING FOUND THAT THE ASSESSING OFFICER (TDS) HAD NOT APPLIED HIS MIND BEFORE PASSING THE ORDER ULS 201(1)/201(1A) AND HAVING FURTHER FOUND THAT THE ORDER SO PASSED BY HIM WAS NOT A SPEAKING ORDER, OUGHT TO HAVE CANCELLED THE ORDER PASS ED BY THE ASSESSING OFFICER. 4) THAT THE LEARNED CIT (APPEALS) HAS ERRED IN NOT DISPOSING OFF THE SPECIFIC GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE FORM NO.35 FILED BEFORE HIM. 5) THAT THE LEARNED CIT (APPEALS) OUGHT TO HAVE CANCELLED THE LEVY OF INTEREST AMOUNTING TO RS.15,06,0801 - LEVIED BY THE ASSESSING OFFICER ULS 201(1A) OF THE ACT. 6) THAT THE APPELLANT CRAVES THE RIGHT TO AMEND, APPEND, DELETE ANY OR ALL GROUNDS OF APPEAL. 2 . BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED E - TDS STATEMENT AND CORRECTION STATEMENT(S) IF ANY . THE TDS STATEMENT WAS ANALYZED BY AO ON THE BASIS OF ENTRIES REPORTED BY THE DEDUCT OR (ASSESSEE), AND THE INFORMATION AVAILA BLE AS PER BANK CHALLAN DETAILS WHICH REVEALED DEFAULTS I.E. NON PA YMENT OF TDS AMOUNT DEDUCTED, THE NON/LOW DEDUCTION OF TDS AT PRESCRIBED RATES AND LATE PAYMENT OF TAXES. ACCORDINGLY, A SHOW CAUSE NOTICE UNDER SECTION 201(1A) OF THE INCOME TAX ACT, 1961 ITA NO. 4936/ DEL/ 2012 3 (HEREINAFTER THE ACT ) WAS ISSUED TO THE ASSESSEE ALONGWITH A DETAILED JUSTIFICATION INDICATING ENTRY REASONS OF THE DEFAULTS NOTICED IN THE CASE OF THE DEDUCTOR (ASSESSEE). SINCE ACCORDING TO AO, THE DEFAULTS, FOUND WERE FACTUAL AND BASED ON ENTRIES REPORTED IN THE TDS STATEMENT, DEDUCTOR WAS ADVISED TO FILE COR RE CTION STATEMENT TO RECTIFY DATA ENTRY ERRORS , IF ANY, IN THE TDS STATEMENT WITHIN 15 DAYS OF RECEIPT OF SUCH SHOW CAUSE NOTICE. THE NET DEFAULTS NOTICED AFTER THE EXPIRY OF STIPULATED PERIOD OF FILING THE CORRECTION STATEMENTS ARE AS PER THE JUSTIF ICATION REPO RT WHICH FORMS ANNEXURE A OF HIS ORDER. AND IN VIEW OF THE DEFAULTS AS PER ANNEXURE A , THE DEDUCTOR (ASSESSES) WAS DECLARED TO BE AN ASSESSEE IN DEFAULT AND THE AO ASSESSED ACCORDINGLY. THE DEDUCT OR (ASSESSEE) WAS DIRECTED TO PAY THE T OTAL TAX LIABILITY OF RS. 15,06,080 VIDE ORDER DATED 28.3.2011 PASSED U/S. 201(1)/201(1A) OF THE ACT. 3 . AGAINST THE AFORESAID ORDER OF THE ASSESSING OFFICER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS ORDER DATED 6.7.2012 HAS ALLOWED THE A PPEAL FOR STATISTICAL PURPOSES WITH SOME DIRECTIONS. 4 . AGGRIEVED BY THE SAID ORDER OF THE LD. CIT(A), N OW THE ASSESSEE IS IN APPEAL BEFORE US. 5 . THE LD. AR AT THE OUTSET POINTED TO THE FIRST PAGE OF THE IMPUGNED ORDER AND DREW OUR ATTENTION TO THE FACT THAT FROM A PERUSAL OF THE SAID PAGE, IT CAN BE NOTED THAT THE LAST DATE OF HEARING HAS BEEN KEPT AS BLANK, MEANING NO DATE WAS FIXED BY THE LD. CIT(A) FOR HEARING AND THE ASSESSEE IS NOT IN RECEIPT OF AN Y NOTICE. AND IF NOTICE WAS ISSUED THEN DATE OUGHT TO HAVE BEEN MENTIONED BY THE LD. CIT(A). S O ACCORDING TO HIM, IT CAN SAFELY BE INFERRED THAT NEITHER NOTICE WAS ISSUED NOR ANY DATE OF HEARING WAS FIXED BY THE LD. CIT(A ) , SO NOBODY COULD REPRESENT THE ASSESSEE BEFORE THE LD. CIT(A), WHICH IS AGAINST NATURAL JUSTICE. ITA NO. 4936/ DEL/ 2012 4 6 . ON THE OTHER HAND, LD. DR HAS RELIED UPON THE ORDER OF THE AO. 6 .1 WE FIND THAT IN PARA 3 OF THE IMPUGNED ORDER THE LD. CIT(A), STATES WHEN THE AO(TDS) IS UNABLE TO APPLY HIS MIND OR HAVE NO ACCESS TO NSDL SITE, WHAT THE CIT(A) CAN DO IN SUCH TYPE OF APPEALS? TO MY MIND, THESE APPEALS APPEAR INFRUCTUOUS AND REDUNDANT. 6 .2 IN OUR OPINION, ORDER PASSED WITHOUT HEARING THE ASSESSEE, IS BAD IN LAW, WE FIND FORCE IN THE CONTENTION OF T HE ASSESSEE THAT WITHOUT SPECIFY ING A DATE OF HEARING AND INFOR MING THE SAME BY ISSUE OF NOTICE, VITIATES THE IMPUGNED ORDER. S O WE SET ASIDE THE IMPUGNED ORDER AND DIRECT THE LD. CIT(A) TO PASS A SPEAKING ORDER ON THE QUESTION OF LAW, FACT AND MIXED QU ESTION OF LAW OR FACT , IF RAISED BY THE ASSESSEE BEFORE HIM. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE HE PASSES THE DE NOVO APPELLATE ORDER. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PR ONOUNCED IN THE OPEN COURT ON 2 9 - 5 - 2015. S D / - S D / - [ S.V. MEHROTRA ] [ A.T. VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 2 9 . 5 .2015 COPY FORWARDED TO: - 1. APPELLANT - ITA NO. 4936/ DEL/ 2012 5 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES