M/s. Bhagwati Agencies Private Limited, New Delhi V. ITO, New Delhi

ITA 5250/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3502 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 25-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: RAVINDER SINGH AHUJA
• Keywords: Opportunity of being heard
• Section: 68; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI A BENCH , NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAV A , JUDICIAL MEMBER ITA NO S . 5249 & 5250 /D EL /20 1 4 [ ASSESSMENT YEAR : 200 7 - 0 8 ] M/S BHAGWATI AGENCIES PVT. LTD VS. THE I.T .O C - 118, EAST OF KAILASH WARD 2(4) NEW DELHI NEW DELHI PAN : A ABCB 4163 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 06 . 1 1 . 201 7 DATE OF PRONOUNCEMENT : 07 . 1 1 .201 7 ASSESSEE BY : SHRI RAVINDER SINGH AHUJA REVENUE BY : SHRI S .K. JAIN, SR. DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER, BOTH THE ABOVE APPEAL S PERTAINING T O SAME ASSESSEE ARISE FROM TWO DIFFERENT ORDER S OF THE CIT(A) - V , NEW DELHI VIDE ORDER DATED 0 9 / 04 /201 3 FOR A.Y 200 7 - 0 8 . APPEAL IN ITA NO. 5249/DEL/2014 PERTAINS TO ADDITION IN QUANTUM WHEREAS THE APPEAL IN ITA NO. 5250/DEL/2014 PERTAINS TO LEVY OF 2 PENALTY U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. 2. IN ITA NO. 5249/DEL/2014 , BEING QUANTUM APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING SOLITARY GROUND OF APPEAL: THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER HAS MADE GROSS ERRORS IN FACTS AND LAW IN MAKING THE ADDITIONS ON ACCOUNT SHARE CAPITAL AND UNSECURED LOAN AND IMPOSING PENALTY THEREAFTER, U/S 68 OF THE ACT. 3. IN ITA NO. 5250/DEL/2014 , BEING PENALTY APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING SOLITARY GROUND OF APPEAL: THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER HAS MADE GROSS ERRORS IN FACTS AND LAW IN MAKING THE ADDITIONS ON ACCOUNT SHARE CAPITAL AND UNSECURED LOAN AND IMPOSING PENALTY THEREAFTER, U/S 271(1)(C) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE OR DERS OF THE A.O AND THE LD. CIT(A). AT THE VERY OUTSET, IT WAS BROUGHT TO OUR NOTICE THAT THE ASSESSMENT IN QUANTUM HAS BEEN MADE U/S 144 OF THE ACT, 3 WHICH IS DATED 7.12.2009. WE FIND THAT THE ASSESSEE WAS ISSUED SEVERAL NOTICES FROM TIME TO TIME. HOWEV ER, NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE AND NO DETAILS HAVE BEEN FILED. THEREFORE, THE ASSESSING OFFICER PROCEEDED TO FRAME THE ASSESSMENT EX - PARTE . BEFORE THE LD. CIT(A) ALSO, NEITHER ANYONE ATTENDED THE HEARING NOR ANY WRITTEN SUBMISSIONS WER E FILED. ACCORDINGLY, THE LD. CIT(A) ALSO PASSED EXPARTE ORDER. 5. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS RAISED UNSECURED LOANS FOR RS. 82,28,500/ - AND SHARE APPLICATION MONEY AMOUNTING TO RS. 26,16,000/ - . IN THE ABSENCE OF ANY EXPLANATION, THE ASSESSING OFFICER MADE ADDITION AND TREATED THE SAME AS INCOME OF THE ASSESSEE. 6. THE LD. COUNSEL FOR THE ASSESSEE, IN THE PRESENT CASE, ARGUED THAT THERE WAS CHANGE OF THE ASSESSING OFFICER AND ACCORDINGLY, NOTICE WAS RECEIVED FOR WHICH ADJOURNMENT WAS SOUGHT AND, THEREAFTER, THE AO PASSED THE ORDER U/S 144 OF THE ACT. 4 7. IT WAS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT A S REGARDS THE NOTICE ISSUED BY THE LD. CIT(A) WHICH IS DATED 19.03.2013, IN FACT, HAS NOT BEEN RECEIVED EITHER BY THE ASSESSEE AND IF RECEIVED BY THE ASSESSEE, HAS NOT BEEN COMMUNICATED TO THE LD. COUNSEL FOR THE ASSESSEE. ACCORDINGLY, HE PRAYED TO PROVIDE AN OPPORTUNITY SINCE ALL THE DETAILS BEFORE THE ASSESSING OFFICER AS WELL THE LD. CIT(A) WE RE READY A ND CAN BE PROVIDED TO THE ASSESSING AUTHORITY. 8. AFTER HEARING THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR WHO OPPOSED THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION THAT THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO PROVIDE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE SHALL COOPERATE IN THE PROCEEDINGS BEFORE THE ASSESSING AUTHORITY. THE LD. COUNSEL FOR THE ASSESSEE IS DIRECTED NOT TO SEEK ADJOURNMENT ON FLIMSY GROU NDS. UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE MATTER IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE DE NOVO IN BOTH THE APPEALS AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, 5 THE GRO UNDS OF APPEAL RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 7 .1 1 .2017. S D / - S D / - [ SUDHANSHU SRIVASTAV A] [B.P. JAIN] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 7 T H NOVEM BER , 201 7 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI