M/s Astra Netcom India P. Ltd., New Delhi V. ITO, New Delhi

ITA 5208/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86468 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 16-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. , JM ITA NO. 5208 /DEL/2013 : ASSTT. YEAR : 2002 - 03 M/S ASTRA NETCOM I NDIA (P) LTD. R - 19, (LGF), HAUZ KHAS, NEW DELHI VS ITO, WARD 2(2), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A DCA4620L ASSESSEE BY : NONE REVENUE BY : MS. Y. KAKKAR , SR. DR DATE OF HEARING : 05.01.2015 DATE OF PRONOUNCEMENT : 05 .01.2015 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12.06.2013 OF LD. CIT(A) - V , NEW DELHI. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOUR NMENT WAS SOUGHT. WE, THEREFORE, PROCEEDED EX PARTE AND THE CASE IS DECIDED ON MERIT AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR. 3 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) OF THE I. T. ACT, 1961 (HEREI NAFTER REFERRED TO AS THE ACT). ON 02.05.2005 AT AN ITA NO. 5208 /DEL /2013 ASTRA NETCOM INDIA (P) LTD. 2 INCOME OF RS. 15,42,977/ - AS AGAINST THE RETURNED INCOME OF RS. 1,14,440/ - . THE ASSESSEE REFE RRED AN APPEAL TO THE LD. CIT(A) WHO SUSTAINED CERTAIN ADDITIONS AND ALSO ALLOWED SOME RELIEF. ULTIMATELY, THE INCOME WAS ASSESSED AT RS. 4,69,034/ - . THE AO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND PASSED THE PENALTY ORDER EX PARTE . THE AO LEVIED THE PENALTY OF RS. 1,26,590/ - U/S 271(1)(C) OF THE ACT. 4 . BEING AGGRIEVED THE ASSESSEE CARRIED T HE MATTER TO THE LD. CIT(A) WHO ALSO PASSED THE EX PARTE ORDER AND SUSTAINED THE PENALTY LEVIED BY THE AO BY OBSERVING IN PARA 2 OF THE IMPUGNED ORDER AS UNDER: 2 A NOTICE DATED 24.05.2013 WAS ISSUED U/S 250 OF THE I. T. ACT FOR HEARING OF THE APPEAL ON 07.06.2013, AND WAS SENT ON THE ADDRESS M/S ASTRA NETCOM INDIA (P) LTD., R - 19(LGF), HAUZ KHAS, NEW DELHI - 110019 AS GIVEN IN THE APPEAL MEMO FOR THE PURPOSE OF SENDING NOTICES ETC. NOBODY ATTENDED THE PROCEEDINGS ON 07.06.2013 AND NEITHER ANY APPLICATION FO R ADJOURNMENT WAS RECEIVED. THE NOTICE HAS ALSO NOT BEEN RECEIVED BACK TILL DATE I.E. 12.06.2013 UN - SERVED. FROM THE AFORESAID IT APPEARS THAT THE NOTICE HAS REACHED THE APPELLANT BUT IT HAS NOT BOTHERED TO ATTEND THE PROCEEDINGS. IT MAY BE MENTIONED THAT THE APPELLANT HAD NOT COOPERATED WITH THE AO IN THE PENALTY PROCEEDINGS WHICH ITA NO. 5208 /DEL /2013 ASTRA NETCOM INDIA (P) LTD. 3 RESULTED IN THE PENA LTY ORDER BEING PASSED EX - PARTE . IN VIEW OF THE AFORESAID, NO USEFUL PURPOSE IS LIKELY TO BE SERVED BY FIXING THE APPEAL AGAIN AND AGAIN. THEREFORE, THE GROUN DS OF APPEAL RAISED BY THE APPELLANT ARE DISMISSED AND THE ACTION OF THE AO IS CONFIRMED. THE APPEAL IS DISMISSED. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. DR SUBMITTED THAT THE ASSESSEE NEITHER APPEARED BEFORE THE AO NOR BEFORE THE LD. CIT(A) AND EVE N BEFORE THIS BENCH OF THE TRIBUNAL THEREFORE THE PENALTY SUSTAINED BY THE LD. CIT(A) MAY BE CONFIRMED. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND P ERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT APPEARS THAT THE NOTICE OF HEA RING WAS NOT SERVED ON THE ASSESSEE BY THE LD. CIT(A). IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDONED UNHE ARD AS PER MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE NOTHING IS BROUGHT ON RECORD THAT TH E NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. W E, THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE DEEM IT APPROPRIATE TO REMAND THIS ISSUE BACK TO THE FILE OF 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. 5208 /DEL /2013 ASTRA NETCOM INDIA (P) LTD. 4 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 05 /01/2015 ) SD/ - SD/ - (GEORGE GEORGE K. ) (N. K. SAINI) JUDICIAL MEMBER AC COUNTANT MEMBER DATED: 05 /01/2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 0 5 .01.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 0 5 .01.2015 PS 3. DRAFT PRO POSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.