Vistasta Estates P.Ltd, New Delhi V. ACIT,Circle-26(1)(erstwhile Circle-17(1), New Delhi

ITA 5185/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7022 (ITAT-DELHI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 10-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: GAURAV JAIN DEEPIKA AGGARWAL

Judgement Text

ITA NO. 5185/DEL/2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-5185/DEL/2017 ( ASSESSMENT YEAR: 2008-09) VISTASTA ESTATES PVT. LTD. 15, DR. APJ ABDUL KALAM ROAD, NEW DELHI. PAN NO. AACCV0862E VS ACIT, CIRCLE 26(1), NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SH. GAURAV JAIN, DEEPIKA AGGARWAL, CA REVENUE BY SH. S.S. RANA, CIT DR ORDER PER K. NARSIMHA CHARY, J.M. CHALLENGING THE ORDER DATED 08.05.2017 IN APPEAL NO . 16/15-16 PASSED BY THE COMMISSIONER OF INCOME TAX ( APPEALS)- 33, NEW DELHI (LD. CIT(A)), ASSESSEE PREFERRED TH IS APPEAL. 2. A PERUSAL OF THE IMPUGNED ORDER, AS IS SUBMITTED BY THE LD. AR, SHOWS THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE FOR AT LEAST 13 OCCASIONS TO ENTER APPEARANCE BEFORE THE L D. CIT(A) TO SUBSTANTIATE THEIR CLAIM. SINCE THE ASSESSEE FAILED PERSISTENTLY TO COOPERATE WITH THE DISPOSAL OF THE APPEAL AFTER HEA RING THE DATE OF HEARING 10.07.2018 DATE OF PRONOUNCEMENT 10.07.2018 ITA NO. 5185/DEL/2017 2 ASSESSEE ALSO, LD. CIT(A) PASSED THE IMPUGNED ORDE R BASED ON THE RECORD. 3. IT IS THE SUBMISSION ON BEHALF OF THE ASSESSEE T HAT THERE WAS FAILURE ON THE PART OF THE COUNSEL ENGAGED BY THE A SSESSEE AND NOT KNOWING THE STATUS OF THE APPEAL BEFORE THE LD. CIT (A) THE ASSESSEE COULD NOT PROCEED WITH THE MATTER DILIGENT LY. AFFIDAVIT OF THE ASSESSEE FILED TO THIS EFFECT. 4. LD. DR SUBMITS THAT IN THIS MATTER THE ASSESSEE FAILED TO AVAIL THE OPPORTUNITY PROVIDED BY THE FIRST APPELLA TE AUTHORITY AND REMAND OF THE MATTER DOES NOT SERVE ANY PURPOSE WIT HOUT THE ASSESSEE UNDERTAKING TO COOPERATE WITH THE FIRST AP PELLATE AUTHORITY. HE SUBMITTED THAT THE REMAND OF THE MAT TER WILL CHOKE WORK BEFORE THE LD.CIT (A) AND THE ASSESSEE BY THEI R OWN CONDUCT DISENTITLED THEMSELVES TO ANY RELIEF IN THIS MATTER . HE PRAYED TO DISMISS THE APPEAL IN LIMINE . 5. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS ON EITHER SIDE. THE FACT REMAINS THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO MAKE REPRESENTATION BEFORE THE LD. CIT (A) DURING THE PERIOD BETWEEN 14.09.2012 AND 08 .02.2017. THOUGH THE ASSESSEE SHIFTS THE BURDEN TO THE ADVOCA TE IT WILL NOT ABSOLVE THE ASSESSEE OF THE RESPONSIBILITY TO THE D ILIGENT IN PURSUING THE MATTER. 6. BE THAT AS IT MAY, AS THE THINGS STAND TODAY THE IMPUGNED ORDER IS AN EX-PARTE ORDER AND THE ASSESSEE IS PRAY ING FOR AN OPPORTUNITY TO GET THE MATTER DISPOSED OFF ON MERIT S BY SUBMITTING THAT THEY ARE READY TO COOPERATE WITH THE FIRST APP ELLATE AUTHORITY. THOUGH THE LD. DR VEHEMENTLY OPPOSED THIS PETITION THE FACT ITA NO. 5185/DEL/2017 3 REMAINS THAT THE ASSESSEE DID NOT STAND TO GAIN BY ALLOWING THE FIRST APPEAL DISPOSED OFF EX-PARTE. WHEN THE TECHN ICALITIES ARE PITTED AGAINST THE POSSIBILITY OF DELIVERY OF SUBST ANTIAL JUSTICE THE FORMER MUST GIVE WAY TO THE LETTER. THE HIGHEST TH AT WOULD HAPPEN BY REMANDING THE MATTER TO THE LD. CIT (A) I S THAT A CAUSE WOULD BE DECIDED ON MERITS. WE DEEM IT JUST AND NE CESSARY TO DO SO, HOWEVER, SUBJECT TO THE CONDITION OF THE ASSESS EE PAYING COST OF RS. 10,000/- TO THE DEPARTMENT. IT IS MADE CLEA R THAT IT IS THE LAST OPPORTUNITY TO THE ASSESSEE. 7. SUBJECT TO THE ABOVE OBSERVATIONS THE IMPUGNED O RDER IS SET ASIDE AND THE MATTER IS REMANDED TO THE FILE OF THE LD. CIT (A) FOR DISPOSE AFRESH AFTER GIVING AN OPPORTUNITY TO THE A SSESSEE OF BEING HEARD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10.07.2018 SD/- SD/- (G.D. AGRAWAL) (K. NARSIMHA CHA RY) PRESIDENT JUD ICIAL MEMBER DATED: 10.07.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 5185/DEL/2017 4 DATE OF DICTATION 10.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 10.7.18 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 10.7.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 11.7.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 11.7.18 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.7 .18 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER