M/s Smartspace Infrastructure Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5359/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77626 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 09-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 01-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y S KAKKAR
• Assessee Lawyers: J C BHALLA
• Keywords: Business income; Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO. 5359/DEL/2013 ASSESSMENT YEAR: 2007-08 SMARTSPACE INFRASTRUCTURE PVT. LTD., 67, FRIENDS COLONY, WEST, NEW DELHI. AAJCS2713E VS. ITO, WARD 9(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.C. BHALLA, CA RESPONDENT BY: SH. Y.S. KAKKAR, SR. DR O R D E R PER S.V. MEHROTRA, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. CIT(A)-XII, NEW DELHI, DATED 14/06/2012 FOR A.Y. 20 07-08. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CO MPANY HAD FILED ITS RETURN OF INCOME DECLARING A LOSS OF RS. 9,81,678/- . THE AO NOTICED THAT ASSESSEE COMPANY HAD NOT UNDERTAKEN ANY BUSINESS DU RING THE YEAR UNDER CONSIDERATION, BUT IT HAD CLAIMED VARIOUS EXPENSES IN THE PROFIT AND LOSS ACCOUNT, SUCH AS TRAVELING OF RS. 7,48,197/-, TELEP HONE OF RS. 1,63,798/-, BUSINESS PROMOTION OF RS. 22,710/-. THE AO DISALLO WED THE EXPENSES AND DETERMINED THE TOTAL INCOME AT RS. NIL AS THE ASSES SEE COMPANY HAD NOT SHOWN ANY BUSINESS INCOME DURING THE YEAR. ITA NO. 5359/D/2013 2 3. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL RELYI NG ON THE FINDINGS OF HER PREDECESSOR CIT(A)-XII, DENYING THE CONDONATION OF DELAY IN FILING THE APPEAL. 4. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), TH E ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(APPEALS) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER EX-PARTE, HENCE NOT AFFORDING TO GIVE SUFFICIENT OP PORTUNITY OF BEING HEARD TO THE ASSESSEE; 1.1THE LD. CIT(APPEALS) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL WITHOUT AFFORDING THE APPELLANT COMPANY A REASONABLE OPPORTUNITY OF BEING HEARD; 2. WITHOUT PREJUDICE TO ABOVE THE LD. CIT(APPEALS) HAS ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING THE DECISION OF LD. ASSESSING O FFICER IN DISALLOWING THE EXPENSES AMOUNTING TO RS. 9,75,652/-. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO O PPORTUNITY WAS AFFORDED BY THE PREDECESSOR CIT(A) BEFORE REJECTING THE ASSESSEES APPLICATION DATED 21/07/2010 SEEKING CONDONATION OF DELAY IN FILING APPEAL BEFORE LD. CIT(A). HE SUBMITTED THAT ONLY WHEN SUC CESSOR CIT(A) DISMISSED THE ASSESSEES APPEAL, ASSESSEE CAME TO KNOW ABOUT DENYING THE CONDONATION OF DELAY IN FILING THE APPEAL. LD. COU NSEL SUBMITTED THAT THE DIRECTOR MR. PRASHANT PRAKASH SAWHNEY WHO WAS RESPO NSIBLE FOR THE OPERATIONS OF THE COMPANY WAS TRAVELING OUTSTATION FREQUENTLY DURING THE PERIOD FROM JANUARY, 2010 TO MARCH, 2010 AND THE RE SPONSIBILITY OF FILING OF THE APPEAL HAD BEEN GIVEN TO MR. LOKESHWAR MATHUR ( THE COUNSEL). IT WAS ITA NO. 5359/D/2013 3 FURTHER SUBMITTED THAT THE COUNSEL WAS UNWELL AND O N BED REST FROM TIME TO TIME DURING THE PERIOD, HENCE THE FILING OF APPEAL GOT DELAYED BY 129 DAYS. 5.1 LD. COUNSEL POINTED OUT THAT THE AFFIDAVIT OF D IRECTOR IN-CHARGE CONFIRMING THE AFOREMENTIONED FACTS IS CONTAINED AT PAGES 2 TO 3 OF PAPER BOOK. 6. LD. DR RELIED ON THE ORDER OF LD. CIT(A). 6.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE RECORD OF THE CASE. WE FIND THERE WERE BONAFIDE RE ASONS FOR DELAY IN FILING THE APPEAL BEFORE LD. CIT(A) AND, THEREFORE, IN ORD ER TO IMPART SUBSTANTIAL JUSTICE TO ASSESSEE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND CONDONE THE DELAY IN FILING THE APPEAL BEFORE LD. CIT(A). ACCO RDINGLY, THE MATTER IS RESTORED TO LD. CIT(A) FOR FRESH DISPOSAL AS PER LA W AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11/4/2014 SD/- SD/- (JOGINDER SINGH) JUDICIAL MEMBER (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 11/04/2014 *KAVITA ITA NO. 5359/D/2013 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER ASSISTANT REGISTRAR