Shri Chander Ram Arya, Bareilly V. ITO- 1, Kashipur

ITA 5483/DEL/2012

• Counselvise Citation: 548320114 RSA 2012
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAV
• Keywords: Opportunity of being heard; Principle of natural justice; Non passing of speaking order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI J.S. REDDY ITA NO. 5483/DEL/2012 ASSTT. YR: 2009-10 SHRI CHANDER RAM ARYA VS. INCOME-TAX OFFICER-1, INDIAN OIL CORPORATION, PATTI KALAN, KASHIPUR. SULTANPUR PATTI, NEAR KASHIPUR, DISTRICT RAMPUR. PAN: BCDPA 6430 B ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI SANAT KAPOOR ADV. RESPONDENT BY : MS. NIDHI SRIVASTAV SR. DR O R D E R PER R.P. TOLANI, J.M : THIS IS ASSESSEES APPEAL AGAINST CIT(A)S ORDER DATED 14-9-2012 RELATING TO A.Y. 2009-10.FOLLOWING GROUNDS ARE RAIS ED: 1. THAT THE ORDER PASSED BY THE CIT(A) IS BAD IN L AW AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS THE SAM E IS PASSED WITHOUT GIVING REASONABLE AND PROPER OPPORTU NITY OF BEING HERD. THE LAST DATE OF HEARING WAS FIXED F OR 13- 09-2012 AND THE NOTICE FOR THE SAID HEARING WAS REC EIVED ON 14-09-2012. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS. 6,82,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVEST MENT TOWARDS PURCHASE OF HOUSE WITH TOTAL DISREGARD TO T HE FACTS AND CIRCUMSTANCES OF THE CASE. 2 2. FACTS OF THE CASE, IN BRIEF ARE: THE CIT(A) PROC EEDED TO DISPOSE OF THE APPEAL EX PARTE, QUA THE ASSESSEE, INTER ALIA, BY O BSERVING AS UNDER: 3.1. DURING APPELLATE PROCEEDINGS, IT IS SEEN THAT VIDE ORDER DATED 29-02-2012 A REQUEST WAS TENDERED FOR EARLY H EARING ON ACCOUNT OF CLAIMED INABILITY TO PAY THE DEMAND RAIS ED BY THE LD. A.O. THEREAFTER THIS CASE WAS FIXED FOR HEARING ON 24-O4- 2012, 28-06-2012, 19-07-2012 (FINAL OPPORTUNITY NOT ICE) AND AGAIN FOR 13-09-2012 (FINAL OPPORTUNITY NOTICE). ON NONE OF THESE DATES HAVE ANYBODY ATTENDED OR FILED ANY WRIT TEN SUBMISSIONS, ONLY ON SOME DATES REQUESTS FOR ADJOUR NMENT HAVE BEEN RECEIVED. THUS THIS CASE IS BEING DISPOSED OFF AGAINST THE APPELLANT WITH RESPECT TO GROUNDS NUMBER 1.2 AND 3 SINCE THERE IS NO MATERIAL AVAILABLE TO TAKE A VIEW OTHER THAN WHAT THE LD. A.O. HAS DETERMINED I THE IMPUGNED ORDER. 4.0. SIMILARLY, GROUND NO. 4 CHALLENGING THE LEVY O F INTEREST ON THE ADDITION MADE, IS ALSO DECIDED AGAINST THE APPE LLANT SINCE SUCH LEVY FOLLOWS FROM THE QUANTUM OF INCOME DETER MINED THROUGH THE ASSESSMENT ORDER. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE ITA T. 3. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE L EARNED CIT(A) WAS NOT JUSTIFIED IN DISMISSING ASSESSEES APPEAL EX PART E, QUA THE ASSESSEE, BY PASSING A SKETCHY ORDER WITHOUT ASSIGNING ANY REASO N IN COMING TO HIS CONCLUSION. BESIDES, THE LAST NOTICE OF HEARING FIX ED FOR 13-9-2012 WAS RECEIVED BY THE ASSESSEE ON 14-9-2012, THUS ATTENDA NCE ON THIS DATE WAS RENDERED IMPOSSIBLE. WHEN ASSESSEE APPROACHED THE C IT(A) OFFICE THE EX PARTE ORDER WAS ALREADY PASSED. HE PRAYED THAT THE ORDER OF CIT(A) MAY BE SET ASIDE WITH A DIRECTION TO DECIDE THE GROUNDS OF APPEAL ON MERIT BY PASSING A REASONED ORDER, AFTER GIVING THE ASSESSEE ADEQUA TE OPPORTUNITY OF BEING HEARD. 4. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF CIT(A). 3 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. LD. DR COULD NOT DISPUTE THE F ACT OF LAST NOTICE SERVICE ON 14-9-2012. ON GOING THROUGH THE ORDER OF LEARNE D CIT(A) WE FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE AS SESSEE. LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL BY SIMPLY UPHOLDING THE ORDER OF THE AO BY OBSERVING THERE IS NO OTHER VIEW TO TAKE, WITHOUT G IVING ANY REASON IN ARRIVING AT HIS CONCLUSION. THE ORDER OF THE LEARNE D CIT(A) THUS IS NOT A SPEAKING ORDER. THE SAME IS SET ASIDE ON BOTH COUN TS I.E. NON SERVICE OF NOTICE AND BEING A NON SPEAKING ORDER AND THE MATTE R IS RESTORED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY WITH THE DIRE CTION TO PASS A REASONED ORDER IN ACCORDANCE WITH LAW, OF COURSE, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 7-10-2013. SD/- SD/- ( J.S. REDDY ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7-10-2013. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4