Dushyant Nagar, New Delhi V. ITO ward-1(2), Faridabad

ITA 5243/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8816 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 07-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB SENIOR
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay; Set aside
• Section: 145; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5243 /DEL./2019 (ASSESSMENT YEAR : 2013-14) AND STAY NO.686/DEL/2019 (IN ITA NO.5243 /DEL./2019) (ASSESSMENT YEAR : 2013-14) SHRI DUSHYANT NAGAR, VS. ITO, WARD 1 (2), C/O SHRI KAPIL GOEL, ADVOCATE FARIDABAD. F 26/124, SECTOR 7, ROHINI, DELHI 110 085. (PAN : ADOPN7211K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL, ADVOCATE REVENUE BY : MS. ASHIMA NEB, SENIOR DR DATE OF HEARING : 08.07.2019 DATE OF ORDER : 11.07.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, SHRI DUSHYANT NAGAR (HEREINAFTER REFERR ED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 30.01.2019 PASSED BY THE COMMISSIONER O F INCOME-TAX ITA NO.5243/DEL./2019 2 (APPEALS), FARIDABAD QUA THE ASSESSMENT YEAR 2013-1 4 ON THE GROUNDS INTER ALIA THAT :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT-A ERRED IN SUSTAINING THE ORDER OF LD AO U/S 144 AND THEREBY CONFIRMING AGGREGATE ADDI TION OF RS.236,81,279 (COMPRISING OF FOUR ADDITIONS OF RS.112,54,010, RS.113,86,008, RS.5,41,261, RS 500,0 00) ON BASIS OF VAGUE AND INCORRECT REASONING AS EVIDENT F ROM THE FACT THAT LATEST CERTIFICATE DATED 10.05.2019 (ENCL OSED WITH APPEAL MEMO) FORM OFFICE OF ASSISTANT EXCISE AND TA XATION OFFICER (FARIDABAD) ESTABLISHES THAT NOT A SINGLE P ENNY PAYMENT IS NON RECONCILED (AFFIDAVIT OF ASSESSEE AL SO ENCLOSED) AND MERELY DUE TO LACK OF PROPER REPRESEN TATION BY LD AR OF ASSESSEE BEFORE LD AO SAME LED TO INCORREC T ADDITION IN ASSESSMENT ORDER WHICH ALSO GOT REPEATE D AT CIT-A STAGE . 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LD CIT-A ERRED IN SUSTAINING THE O RDER OF LD AO U/S 144 WHERE ASSESSMENT ORDER PASSED WAS IN BLATANT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE A ND NO ADEQUATE OPPORTUNITY WAS GIVEN TO ASSESSEE TO PROVE ITS CASE AND MERELY ON BASIS OF MATERIAL GATHERED AT BACK OF ASSESSEE ADVERSE INFERENCE IS DRAWN WITHOUT ANY IOTA OF EVID ENCE THAT ANY EXPENSE CLAIMED BY ASSESSEE IS UNEXPLAINED AND NO WHERE AUDITED BOOK RESULT IS DOUBTED MUCH LESS REJE CTED U/S 145 OF THE ACT. THAT THE APPELLANT CRAVES LEAVE TO ODD ADD/ALTER OI LY/ALL GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. HUMBLE PRAYER: I) TO DELETE THE 4 ADDITIONS OF RS.112,54,010/-, RS.113,86,008, RS.541,261 AND RS.500,000 RESPECTIVE LY II) TO SET ASIDE THE ASSESSMENT TO FILE OF LD AO F OR DENOVO ADJUDICATION. III) TO RESTORE RETURNED INCOME IV) ANY OTHER APPROPRIATE RELIEF. ITA NO.5243/DEL./2019 3 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) MAKING ADDITIONS OF RS.1,12,54,010/-, RS.1,13,86,008/-, RS .5,41,261/- & RS.5,00,000/- ON ACCOUNT OF LICENCE FEE, PERMIT FEE , EXCESS INTEREST PAID CLAIMED & MISC. & PERSONAL EXPENSES RESPECTIVELY ON FAILURE OF THE ASSESSEE TO EXPLAIN AND BRING ON RECORD THE DOCUMEN TARY EVIDENCE. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITIONS BY DISMISSI NG THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 5. BARE PERUSAL OF THE ASSESSMENT ORDER AND IMPUGNE D ORDER PASSED BY THE LD. CIT (A) GOES TO PROVE THAT BOTH THE ORDE RS HAVE BEEN PASSED AT THE BACK OF THE ASSESSEE, THOUGH NUMEROUS OPPORTUNI TIES ARE STATED TO HAVE BEEN GIVEN TO THE ASSESSEE WHO HAS NOT PREFERR ED TO DEFEND HIS CASE BY PUTTING IN APPEARANCE. CHRONOLOGY OF PROCEEDING S CONDUCTED BY THE LD. CIT (A) RECORDED IN PARA 4 OF THE IMPUGNED ORDE R SHOWS THAT NOTICE HAS BEEN SENT 10 TIMES TO THE ASSESSEE BUT NONE OF THE NOTICES IS CLAIMED TO HAVE BEEN SERVED UPON THE ASSESSEE. AT ONE OCCA SION, NOTICE ITA NO.5243/DEL./2019 4 RETURNED BACK UNDELIVERED WITH THE REPORT THAT ASSE SSEE HAS LEFT THE RESIDENTIAL ADDRESS. THEN NOTICE ON THE FRESH ADDR ESS WAS GIVEN THRICE BUT DID NOT BRING ON RECORD IF THE SAME WERE SERVED OR NOT. THEN ON 21.01.2019, REPORT OF AO WAS CALLED WHO HAS REPORTE D THAT LADIES AVAILABLE AT THE GIVEN ADDRESS STATED THAT THE ADDR ESSEE IS OUT OF STATION AND THEY ARE UNAWARE ABOUT HIS WHEREABOUTS AND THEY HAVE ALSO REFUSED TO RECEIVE THE NOTICE. 6. ALL THESE FACTS GO TO PROVE THAT SERVICE OF VALI D NOTICE IS NOT PROVED TO BE EFFECTED ON THE ASSESSEE. TAKING THE HOLISTIC VIEW, WE ARE OF THE CONSIDERED VIEW THAT TO DECIDE THE CONTROVER SY ONCE FOR ALL AND TO STOP THE MULTIPLICITY OF THE LITIGATION, ONE MORE O PPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE, SUBJECT TO THE PAYMENT OF COST OF RS.5,000/-. SO, PRESENT CASE IS SET ASIDE TO THE AO TO DECIDE A FRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATIST ICAL PURPOSES. 7. IN VIEW OF THE FACT THAT APPEAL BEARING ITA NO.5 243/DEL/2019, IN WHICH THE PRESENT STAY APPLICATION WAS FILED, HAS S INCE BEEN DISPOSED OFF VIDE THIS COMPOSITE ORDER, THE PRESENT STAY APPLICA TION IS HEREBY DISMISSED HAVING BEEN BECOME INFRUCTUOUS. ORDER PRONOUNCED IN OPEN COURT ON THIS 11 TH DAY OF JULY, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 11 TH DAY OF JULY, 2019/TS ITA NO.5243/DEL./2019 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), FARIDABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.