HB Estate Developers Ltd., New Delhi V. DCIT, New Delhi

ITA 4982/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2880 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 20-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NIPPUN MITTAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 115JB

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. K. N. CHARY , JM ITA NO. 4981/DEL/2016 : ASSTT. YEAR : 2011 - 12 ITA NO. 4982/DEL/2016 : ASSTT. YEAR : 2012 - 13 H B ESTATE DEVELOPERS LTD., H - 72, CONNAUGHT CIRCUS, NEW DELHI - 110001 VS DCIT, CIRCLE - 12(1)/11(1) NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A A CH3122M ITA NO. 4983/DEL/2016 : ASSTT. YEAR : 2005 - 06 ITA NO. 4984/DEL/2016 : AS STT. YEAR : 2007 - 08 ITA NO. 4985/DEL/2016 : ASSTT. YEAR : 2010 - 11 ITA NO. 4986/DEL/2016 : ASSTT. YEAR : 2011 - 12 HB STOCKHOLDINGS LTD., H - 72, CONNAUGHT CIRCUS, NEW DELHI - 110001 VS DCIT/ADDL. CIT CIRCLE - 12(1) /RAN GE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AA ACH0637F ASSESSEE BY : SH. NIPPUN MITTAL , CA REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 14 .12 .201 7 DATE OF PRONOUNCE MENT : 18 .12 .201 7 ORDER PER N. K. SAINI, AM : THESE APPEALS BY THE ASSESSEE S ARE DIRECTED AGAINST THE SEPARATE ORDER S EACH DATED 19.08.2016 OF LD. CIT(A ) - IV , NEW DELHI . ITA NO S. 4981 TO 4986 /DE L/2016 HB ESTATE DEVELOPERS, STOCKHOLDINGS LTD. 2 2. SINCE, THE FACTS INVOLVED IN ALL THESE APPEALS WHICH WERE HEARD TOGE THER ARE SIMILAR SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3 . AT THE F IRST INSTANCE, WE WILL DEAL WITH THE APPEAL IN ITA NO. 4981/DEL/2016 FOR THE ASSESSMENT YEAR 2011 - 12 . IN THIS APPEAL ALTHOUGH 1 4 GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, HOWEVER, THE MAIN GRIEVANCE VIDE GROUND NOS. 1 TO 4 RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING THE PROPER OPPORTUNITY OF BEING HEARD AND ALSO IN NOT ADJUDICATING THE VARIOUS GROUNDS OF APPEAL ON MERITS. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 29.09.2011 DECLARING TOTAL INCOME OF RS.79,84 ,744/ - AND BOOK PROFIT U/S 115JB OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AT RS.5,0 3,87,505/ - . HOWEVER, THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS. 5,11,27,940/ - AS PER NORMAL PROVISION AND AT AN INCOME OF RS.5,29,73,040/ - UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT. ITA NO S. 4981 TO 4986 /DE L/2016 HB ESTATE DEVELOPERS, STOCKHOLDINGS LTD. 3 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY OBSERVING IN PARA 2 OF THE IMPUGNED ORDER AS UNDER: 2. THE CASE WAS FIXED FOR HEARING ON 17.04.2015 BUT ON THAT DATE AN ADJOURNED APPLICATION WAS FILED BY THE APPELLANT AND CASE WAS ADJOURNED TO 12.05.2015. NOBODY APPE ARED ON 12.05.2015 OR AFTER THAT. ONCE AGAIN CASE WAS FIXED FOR HEARING ON 21.07.2015, NO ONE APPEARED ON THAT DATE. FINALLY THE CASE WAS FIXED ON 21.01.2016, AGAIN AN APPLICATION WAS FILED FOR ADJOURNMENT OF CASE FOR 15 DAYS, WHICH WAS REJECTED. IT SEEMS THAT THE APPELLANT IS NOT INTERESTED IN PERUSING THE MATTER. IN VIEW OF THE CONTINUED NON - COMPLIANCE, I HEREBY DISMISS THE APPEAL. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS NOT DECIDED THE APPEAL ON MERIT, EVEN WHEN, THE SUBMISSIONS WERE MADE BEFORE HIM. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE SOUGHT ADJOURNMENT DUE TO GENUINE REASONS BUT THE LD. CIT(A) WITHOUT COMMUNICATING THE REASONS FOR REJECTING THE APPLICATION FILED BY THE ASSESSEE FOR AD JOURNMENT AGAINST THE HEARING ON 21.01.2016, DISMISSED THE APPEAL IN LIMINE. HE REQUESTED TO RESTORE THE APPEAL TO THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO S. 4981 TO 4986 /DE L/2016 HB ESTATE DEVELOPERS, STOCKHOLDINGS LTD. 4 7 . IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT SINCE THE ASSESSEE DID NOT COOPERATE AND NEVER APPEARED BEFORE THE LD. CIT(A). SO, THERE WAS NO ALTERNATIV E EXCEPT TO DISMISS THE APPEAL BY C ONSIDERING THIS FACT THAT THE ASSESSEE WAS NOT INTEREST ED TO PROSECUTE THE MATTER. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL 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. HE HAD ALSO NOT GIVEN THE REASONS FOR REJECTING THE ADJOURNMENT APPLICATION MOVED BY THE ASSESSEE WHEN THE HEARING WAS FIXED BY HIM ON 21.01.2016. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED U NHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCO RDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN ALL OTHER APPEALS, THE FACTS ARE IDENTICAL, THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS. ITA NO S. 4981 TO 4986 /DE L/2016 HB ESTATE DEVELOPERS, STOCKHOLDINGS LTD. 5 10 . IN THE RESUL T, THE APPEAL S OF THE ASSESSEE S ARE ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 18 /12 / 2017 ) SD/ - SD/ - (K. N. CHARY ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED: 18 /12 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR