Nagesh Knitwears Pvt. Ltd., Ludhiana V. ACIT, New Delhi

ITA 5357/DEL/2013

• Counselvise Citation: 535720114 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA
• Assessee Lawyers: MUNSHI RAM
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. I. C. SUDHIR , JM ITA NO. 5357/DEL/2013 : ASSTT. YEAR : 2009 - 10 NAGESH KNITWEARS PVT. L TD., E - 40, GREATER KAILASH - III, MASJID MOTH, NEW DELHI VS THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 13(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A A CN2140D ASSESSEE BY : SH. MUNSHI RAM, AR REVENUE BY : SH. P. DAM KANUNJHA, SR DR DATE OF HEARING : 17.02.2015 DATE OF PRONOUNCEMENT : 17 .02 .2015 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 19.07.2013 OF LD. CIT(A) - XV I , DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAI SED IN THIS APPEAL: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AS WELL AS ON FACTS. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL WITHOUT AFFORDING A REASONABL E OPPORTUNITY OF HEARING TO THE APPELLANT. 3. THAT THE APPELLANT PRAYS THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE SET ASIDE AND APPEAL REMANDED TO HIS FILE FOR FRESH ITA NO. 5357 /DEL /2013 NAGESH KNITWEARS PVT. LTD . 2 DISPOSAL ON MERITS, AFTER AFFORDING REASONABLE OPPORTUN ITY OF HEARING TO THE APPELLANT. 4. THAT THE APPELLANT PRAYS FOR PERMISSION TO ADD ANY OTHER GROUND OF APPEAL, BEFORE IT IS HEARD AND DISPOSED OF. 3 . FROM THE ABOVE GROUND S IT IS GATHERED THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE ACTION OF THE LD. CIT(A) IN DISMISSING THE APPEAL WITHOUT AFFORDING A REASONABLE OPPORTUNITY OF HEARING. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED E - RETURN ON 29.09.2009 , DECLARING AN INCOME OF RS. 2,57,28,240 / - WHICH WAS PROCESSED U/S 143(1) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED BY THE AO AT AN INCOME OF RS. 2,66,60,400/ - BY MAKING THE DISALLOWANCES OF RS. 1,48,130/ - & RS. 7,84,058/ - OF RECOVERABL E AMOUNT WRITTEN OFF OF VAT AND AED RESPECTIVELY. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISS ED THE APPEAL EX - PARTE IN LIMINE FOR NON - PROSECUTION. 6. NOW THE ASSESSEE IS IN APPEAL. THE ASSESSEE IN HIS WRITTEN SUBMISS ION HAS STATED THAT THE NOTICES FOR HEARING OF APPEAL WERE NOT RECEIVED BY THE ASSESSEE BECAUSE THOSE WERE SENT AT A WRONG ITA NO. 5357 /DEL /2013 NAGESH KNITWEARS PVT. LTD . 3 ADDRESS MENTIONED IN FIRST COLUMN OF FORM NO. 35 INSTEAD OF LAST COLUMN OF FOR M NO. 35 WHEREIN THE CORRECT ADDRESS FOR COMMUNICATION WAS MENTIONED. THEREFORE, THERE WAS A REASONABLE CAUSE FOR NON - APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A). HE REQUESTED THAT THE MATTER MAY BE RESTORED TO THE LD. CIT(A) FOR ADJUDICATION ON MERIT AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 7 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A). 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR NON - PROSECUTION BY MENTIONING IN THE IMPUGNED ORDER THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE ALTHOUGH THE NOTICE WAS SENT AT THE ADDRESS GIVEN IN FIRST COLUMN OF FORM NO. 3 5 WHICH READ AS UNDER: NAGESH KNITWEARS PVT. LTD. E - 40, MASJID MOTH, GREATER KAILASH, PART - III NEW DELHI 9 . IT IS ALSO NOTICED THAT THE ASSESSEE MENTIONED IN LAST COLUMN OF FORM NO. 35 THE ADDRESS ON WHICH NOTICES MAY BE SENT WHICH READ AS UNDER: ITA NO. 5357 /DEL /2013 NAGESH KNITWEARS PVT. LTD . 4 NAGESH KNITWEARS PVT. LTD., G. T. ROAD (WEST), LUDHIANA - 141008 10 . FROM THE ABOVE NOTED FACTS IT IS CLEAR THAT THE LD. CIT(A) SENT THE NOTICE FOR HEARING ON THE WRONG ADDRESS AND ALSO HAD NOT DECIDED THE APPEAL OF THE ASSESSEE ON MERIT . IN THE PRESENT CASE IT IS NOT BROUGHT ON RECORD THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. W E, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER P ROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1 1 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE OPEN COURT ON 17 /02 /2015 ) SD/ - SD/ - (I. C. SUDHIR ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /02 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR