Shri Shyam Lal, Rampur V. ITO, Rampur

ITA 5516/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6927 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 04-08-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 16-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BA RANWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-551 6 TO 5520/DEL/2015 (ASSESSMENT YEAR- 2001-02 TO 2005-06) SHYAM LAL, 93, TILAK NAGAR COLONY, RAMPUR. PAN-AANPL4603P (APPELLANT) VS ITO, WARD-II, RAMPUR (RESPONDENT) APPELLANT BY SH. K.SAMPATH, ADV. & SH. V RAJA KUMAR, ADV. RESPONDENT BY MS. ANIMA BAR A NWAL, SR.DR ORDER THESE ARE 5 APPEALS FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE CONSOLIDATED ORDERS DATED 15.10.2013 OF CIT(A), BAR EILLY PERTAINING TO 2001 - 02, 2002 - 03, 2004-05 AND ORDER DATED 14.09.2013 OF CIT(A), BAREI LLY PERTAINING TO 2003-04 AND 2005-06 ASSESSMENT YEAR RESPECTIVELY. 2. IN ALL THESE APPEALS, THE REGISTRY HAS POINTED O UT A DELAY OF 38 DAYS. THE LD. AR INVITING ATTENTION TO THE CONDONATION OF DELAY PETI TION FILED ALONG WITH THE AFFIDAVIT OF THE ASSESSEE SUBMITTED THAT THE DELAY HAS OCCURRED ON ACCOUNT OF THE FACT THAT THE EX-PARTE ORDER OF THE CIT(A) WAS NOT RECEIVED BY THE ASSESSE E WITHIN TIME AND THE ASSESSEE LEARNT OF THESE ORDERS ONLY SOMETIME WHEN RECOVERY PROCEEDING S WERE TAKEN BY THE REVENUE AGAINST THE ASSESSEE. ACCORDINGLY, PURSUANT TO THIS THE ASS ESSEE FILED AN APPLICATION TO OBTAIN COPY OF THE ORDERS OF THE CIT(A). ACCORDINGLY, IT WAS HI S SUBMISSION THAT FOR REASONS BEYOND HIS CONTROL, THE DELAY HAS OCCURRED. DATE OF HEARING 0 4 .08.2016 DATE OF PRONOUNCEMENT 2 8 .09.2016 I.T.A .NO.-5516 TO 5520/DEL/2015 PAGE 2 OF 4 2.1. CONSIDERING THE CONDONATION OF DELAY PETITION FILED AND THE AFFIDAVIT FILED, THE LD. SR. DR FAIRLY SUBMITTED THAT SHE HAS NO OBJECTION IF TH E DELAY IS CONDONED. 3. IN THE LIGHT OF THE SUBMISSIONS OF PARTIES BEFOR E THE BENCH AND CONSIDERING THE PRAYER OF THE ASSESSEE SUPPORTED BY WAY OF AN AFFIDAVIT, T HE DELAY OF 38 DAYS IS CONDONED IN EACH OF THESE APPEALS. 4. THE PARTIES WERE HEARD ONLY IN RESPECT OF GROUND NO. 1 WHICH IS STATED TO BE COMMON IN ALL THE APPEALS. THE SAME FOR READY REF ERENCE IS EXTRACTED FROM ITA NO.5516/DEL/2015 AND READS AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A ERRED IN PASSING THE IMPUGNED ORDER PRECIPITATELY A ND WITHOUT PROVIDING REASONABLE, ADEQUATE AND PROPER OPPORTUNITY OF HEAR ING AND AGAINST THE NAMES OF NATURAL JUSTICE SUCH THAT THE IMPUGNED ORD ER IS LIABLE TO BE SET ASIDE WITH DIRECTIONS FOR RE-ADJUDICATION THE GROUN DS OF APPEAL. 5. THE LD. AR INVITING ATTENTION TO THE SAID GROUND SUBMITTED THAT THE NOTICE STATED TO HAVE BEEN SENT THROUGH SPEED POST ON 03.10.2013 FIX ING THE HEARING OF THE APPEAL AT CAMP MORADABAD WAS NEVER RECEIVED BY THE ASSESSEE. IN RE SPONSE TO A QUERY, IT WAS SUBMITTED THAT THE ADDRESS OF THE ASSESSEE CONTINUES TO BE CO RRECT. HOWEVER THE SAID ORDER, IT WAS SUBMITTED WAS NOT RECEIVED. ACCORDINGLY IT WAS HIS PRAYER THAT THE IMPUGNED ORDER MAY BE SET-ASIDE AND THE OPPORTUNITY OF BEING HEARD MAY BE GRANTED TO THE ASSESSEE. THE SAID PRAYER WAS NOT OBJECTED TO BY THE LD. SR. DR. 6. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, IT IS SEEN THAT EVEN OTHERWISE THE ORDERS CANNOT BE SA ID TO BE ORDERS WHICH MEET THE STATUTORY REQUIREMENTS AS SET OUT IN SUB-SECTION (6) OF SECTI ON 250 OF THE INCOME TAX ACT, 1961. THE COMMISSIONER, INCOME TAX (APPEALS) WHILE DECIDING T HE APPEALS IS REQUIRED TO ADHERE TO THE PROCEDURES SET OUT IN SECTION 250 OF THE INCOME TAX ACT, 1961. SUB-SECTION (6) OF SECTION 250 MANDATES THAT THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL I.T.A .NO.-5516 TO 5520/DEL/2015 PAGE 3 OF 4 SHALL BE IN WRITING AND SHALL STATE THE POINT OF DE TERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. ON A READING OF THE TWO SET OF CONSOLIDATED ORDERS CHALLENGED BEFORE THE ITAT, IT IS SEEN THAT THE SAID REQUIREME NT IS NOT FULFILLED AS THE LD. COMMISSIONER(APPEALS) WAS OF THE VIEW THAT HE WAS N OT REQUIRED TO GIVE SEPARATE REASONS FOR CONFIRMING THE ORDER OF THE AO. THE SAID UNDER STANDING FLIES IN THE FACE OF THE STATUTORY MANDATE. THE STATUTE WHICH EMPOWERS THE LD. COMMIS SIONER TO DECIDE THE APPEALS SET OUT THE PROCEDURE TO BE ADHERED TO. THE SAME CANNOT BE SAID TO THE COMPLIED WITH WITHOUT EVEN SETTING OUT THE BASIC FACTS AND WITHOUT EVEN S ETTING OUT THE POINTS OF DETERMINATION IN THE APPEALS FILED AND THEN WITHOUT ADDRESSING THE R EASONS FOR CONCURRING WITH THE CONCLUSION ARRIVED AT THE STATUTORY MANDATE CANNOT BE SAID TO BE FULFILLED. EVEN OTHERWISE, IT IS NOT COMING OUT FROM THE RECORD WHETHER THIS WAS THE SOLE ATTEMPT MADE TO ISSUE NOTICE TO THE ASSESSEE OR WERE THERE OTHER INSTANCES ALSO. A CCORDINGLY CONSIDERING THE OVERALL FACTUAL MATRIX, THE IMPUGNED ORDER IS SET ASIDE AND THE ISS UES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WHILE SO DIRECTING IT IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAITH, IT IS HO PED IS NOT ABUSED BY THE ASSESSEE AS FAILING WHICH THE CIT(A) WOULD BE AT LIBERTY TO PAS S A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE SAID ORDER WAS P RONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* I.T.A .NO.-5516 TO 5520/DEL/2015 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI