Sh. Bhupendra Kumar Jain, New Delhi V. ITO, New Delhi

ITA 5297/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0389 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Keywords: Opportunity of being heard
• Section: 69; 144

Judgement Text

I.T.A. NO. 5297 /DEL/2010 1/1 IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH A NEW DELHI, BENCH A NEW DELHI, BENCH A NEW DELHI, BENCH A BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI A K GARODIA, ACCOUTANT MEMBER ITA NO. 5297 /DEL/2010 (ASSESSMENT YEAR 2005-06) SHRI BHUPENDRA KUMAR JAIN, VS. I.T.O., WARD 43(1) , H.NO.20, VIGYAN LOK, NEW DELHI NEAR DAV SCHOOL, NEW DELHI-110 092 (APPELLANTS) (RESPONDENTS) PAN / GIR NO. ADBPJ4238P APPELLANT BY: SHRI ANIL KUMAR, CA RESPONDENT BY: SHRI B KISHORE, SR. DR ORDER ORDER ORDER ORDER PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: 1. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT(A) XXVIII, NEW DELHI DATED 6.8.2010 FOR THE ASS ESSMENT YEAR 2005-06. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD .CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE A DDITIONS MADE BY A.O. WHILE PASSING THE EX-PARTE ORDER U/S 144 OF THE I. T. ACT, WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE EX-PARTE ORDER OF THE CIT(A), CONFIRMIN G THE ADDITIONS MADE IN EX-PARTE ORDER OF A.O., IS HIGHLY UNJUSTIFIED AND BAD IN LAW. 2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE E STIMATED INCOME OF ` 1,20,000/-, AS COMPUTED BY A.O. ON AN A D-HOC AND ARBITRARY MANNER. THE ADDITION CONFIRMED OF ` 1,20 ,000/- IS HIGHLY UNJUSTIFIED AND CONTRARY TO THE PROVISIONS O F LAW. 3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE A DDITION OF ` 2,23,822/- TOWARDS PAYMENT MADE THROUGH CREDIT CARD AS PER AIR, AS INCOME FORM UNDISCLOSED SOURCES U/S 69 OF I . T. ACT. THE ADDITION CONFIRMED OF 1 2,23,822/- IS HIGHLY AR BITRARY, UNJUSTIFIED AND BAD IN LAW. I.T.A. NO. 5297 /DEL/2010 2/2 2. IT WAS SUBMITTED BY THE LD. A.R. THAT IN THE INT ERESTS OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE ALLOWED TO THE ASSES SEE TO PRESENT ITS CASE PROPERLY. AS AGAINST THIS, LD. D.R. SUPPO RTED THE ORDERS OF AUTHORITIES BELOW. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE OR DERS OF AUTHORITIES BELOW. WE FIND THAT ADMITTEDLY, THE AS SESSEE DID NOT APPEAR BEFORE THE AUTHORITIES BELOW IN SPITE OF REP EATED NOTICES BUT WE ALSO FIND THAT IT HAS BEEN NOTED BY THE LD. CIT( A) IN PARA 2 OF HIS ORDER THAT TWO NOTICES WERE ISSUED BY HIM 1 ST ON 12.3.2010 WHICH WAS DISPATCHED ON 13.3.2010 ASKING THE ASSESSEE TO APPEAR ON 19.3.2010 I.E. AFTER SIX DAYS ONLY. THE 2 ND NOTICE DATED 19.07.2010 WAS DISPATCHED ON 22.07.2010 ASKING THE ASSESSEE TO APPEAR ON 30.07.2010 I.E. AFTER 8 DAYS. UNDER THESE FACTS, W E FEEL THAT EVEN CIT(A) HAS NOT GIVEN SUFFICIENT TIME TO THE ASSESSE E ALTHOUGH THE ASSESSEE WAS NEGLIGENT TO BE PRESENT BEFORE LD. CIT (A) AND THE ASSESSEE HAD NOT EVEN ASKED FOR ADJOURNMENT. HENCE , WE FEEL THAT THE ASSESSEE WAS VERY MUCH NEGLIGENT BUT FOR SUCH N EGLIGENCE, IT WILL BE DISPROPORTIONATE TO REFUSE HIM ONE MORE OPP ORTUNITY IN THE INTEREST OF JUSTICE AND IT WILL BE IN FITNESS OF TH INGS THAT SOME COST IS IMPOSED ON THE ASSESSEE FOR SUCH NEGLIGENCE AND THE REFORE, WE IMPOSE COSTS OF `5,000/- ON THE ASSESSEE FOR NON-CO MPLIANCE DUE TO NEGLIGENCE. THE ASSESSEE HAS TO DEPOSIT THIS COST AFTER OBTAINING CHALLAN FROM THE A.O. AND THE COPY OF PAID CHALLAN SHOULD BE FURNISHED BY HIM TO THE A.O. AND WITH THIS CONDITIO N, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER ALLOWING ADEQUATE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF THE ASSESSEE DEPO SITS THE PAID CHALLAN BEFORE THE A.O. REGARDING COST OF ` 5,000/- AS DIRECTED ABOVE, THE A.O. SHOULD DECIDE THE ISSUE AFRESH AFTE R ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE LD. A.R. HAS UNDERTAKEN BEFORE US THAT THE ASSESSEE WILL DEP OSIT COST OF ` I.T.A. NO. 5297 /DEL/2010 3/3 5,000/- ON OR BEFORE 28.02.2011 AND HE WILL MAKE PR OPER COMPLIANCE BEFORE THE A.O. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES IN TERMS AS INDICATED ABOVE. 5. PRONOUNCED IN THE OPEN COURT ON 11 TH FEB., 2011. SD./- SD./- (R. P. TOLANI) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:11 TH FEB., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI