M/s DSIIDC Ltd., New Delhi V. DCIT, New Delhi

ITA 5519/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4049 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 5519/DEL/2016 ASSESSMENT YEAR: 2012-13 M/S DSIIDC LTD., VS. DCIT, CIRCLE-7(1), N-36, BOMBAY LIFE BUILDING, CR BUILDING, NEW DEL HI CONNAUGHT PLACE, NEW DELHI 110 001 (PAN: AAACD1257F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SATYAJEET GOEL, CA DEPARTMENT BY : MS. ASHIMA NEB, SR. DR ORDER PER H.S. SIDHU, JM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 09.9.2016 OF THE LD. CIT(A)-3, NEW DELHI RELATIN G TO ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDE R:- 1(I) THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL EX PARTE WITHOUT ADJUDICATING THE CASE ON MERITS OR PROPER OPPORTUNITY TO THE APPELLANT. 2 (II) THAT EVEN OTHERWISE, THE APPELLANT IS A GOVERNM ENT UNDERTAKING AND NON- COMPLIANCE ON THE DATE OF HEARING WAS ON ACCOUNT OF BONAFIDE REASONS AND CIRCUMSTANCES BEYOND THE CONTROL OF THE APPELLANT. 2(I). THAT EVEN ON MERITS, THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ADDITION OF RS. 96,21,728/- IN RESPECT OF INTEREST ON PARKING OF SURPLUS FUNDS RELATING TO LOW COST HOUSING SCHEME FOR ECONOMICALLY WEAKER SECTION UNDER THE JNNURM SCHEME. (II) THAT THE ABOVE SAID SCHEME BELONGS TO STATE GOVERNMENT OF NCT, DELHI AND NO SUCH INCOME HAS ACCRUED OR RECEIVED BY APPELLANT COMPANY. (III) THAT THE ABOVE SAID ISSUE IS FULLY COVERED A S PER DECISION OF ITAT, HIGH COURT AND SUPREME COURT IN THE PRECEDING YEARS AND IMPUGNED ADDITION IS IN TOTAL DISREGARD TO PAST HISTORY OF THE CASE. 3(I) THAT THE ASSESSING OFFICER IS ALSO NOT JUSTIFIED IN MAKING ADDITION OF RS. 27,76,014/- IN RESPECT OF GROUND RENT AND MAINTENANCE CHARGES EVEN THOUGH THE ABOVE SAID GROUND IS FULLY COVERED IN FAVOUR OF 3 THE ASSESSEE AS PER ORDERS OF THE CIT(A) AND ITAT IN THE PRECEDING YEARS. (II) THAT THE GROUND RENT AND MAINTENANCE RECEIPT I S FOR MEETING ACTUAL EXPENSES AND NO SUCH INCOME HAS ACCRUED TO THE ASSESSEE. 4(I). THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWI NG RS. 82,07,920/- AS PRIOR PERIOD EXPENSES WITHOUT APPRECIATING THAT CLAIM IS IN RESPECT OF LIABILITY CRYSTALLIZED DURING THE YEAR. (II) THAT THE CLAIM IS IN CONFORMITY WITH MERCANTI LE SYSTEM OF ACCOUNTING FOLLOWED BY ASSESSEE AND ALSO COVERED BY PAST HISTORY OF THE CASE. 5. THAT THE ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND ALTER, FORGO ALL OR ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4 4. LD. COUNSEL OF THE ASSESSEE STATED THAT THE LD. CIT( A) HAS PASSED THE ORDER AGAINST THE PRINCIPLES OF NATURAL JUS TICE BY WAY OF EXPARTE ORDER IN NOT PROVIDING SUFFICIENT OPPORTUNITIE S TO THE ASSESSEE AND NOT DECIDED THE APPEAL ON MERITS. HENCE , HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AND PASS A SPEAKING ORDER THEREON. 5. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. IT WAS THE CONTENTION OF THE ASSESSEES COUNSEL THAT LD. CI T(A) HAS PASSED THE EX-PARE NON-SPEAKING ORDER AND DISMISSED THE APPEAL BY NOT PROVIDING SUFFICIENT OPPORTUNITIES TO THE ASSES SEE AND ALSO DID NOT TOUCH THE MERIT OF THE CASE, WHICH IS AGAIN ST THE PRINCIPLE OF NATURAL JUSTICE. WE FURTHER FIND THAT LD. CIT(A), HAS GIVEN HIS FINDING IN THE IMPUGNED ORDER 09.09.2016 VIDE PARA NO. 2 TO 6 AT PAGE NO. 2 & 3 OF HIS ORDER. THE SAID RELEVANT PARAS IS REPR ODUCED AS UNDER:- 2. THE NOTICE U/S. 250 WAS ISSUED BY THIS OFFICE ON 05.4.2016 FIXING THE CASE FOR THE HEARING ON 25.4.2016. IN RESPONSE TO THIS NOTICE, THE ASSESSEE ASKED FOR THE ADJOURNMENT AND THE CASE WAS FIXED 5 FOR 22.6.2016. ON 22.6.2016, THE ASSESSEE SEEKS ANOTHER ADJOURNMENT. ANOTHER NOTICE DATED 05.7.2016 WAS ISSUED FIXING THE CASE FOR THE HEARING ON 28.7.2016. ON 28.7.2016, THE ASSESSEE AGAIN REQUESTED FOR THE ADJOURNMENT AND THE APPELLANT WAS GIVEN THE FINAL OPPORTUNITY TO ATTEND THE PROCEEDINGS ON 22.8.2016. IT IS REGRETTED TO NOTE THAT NEITHER ANYBODY ATTENDED ON THIS DATE NOR ANY ADJOURNMENT WAS SOUGHT. 3. I HAVE CONSIDERED THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT AND ALSO CONSIDERED THE NON COOPERATION ON THE PART OF THE APPELLANT. AS NOTED ABOVE, IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN HAVING HIS APPEAL DECIDED. THE APPEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED FOR NON PROSECUTION AND ALSO ON MERITS AS THE APPELLANT HAS NOT FILED ANY SUBMISSIONS ALONGWITH DOCUMENTARY EVIDENCES REGARDING THE CLAIMS MADE IN THE APPEAL. I FIND SUPPORT FROM THE DECISION IN THE CASE OF CIT VS. BN BHATTACHARJEE (1977), REPORTED IN 118 ITR 461 (SC) (RELEVANT PAGES 477 AND 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT:- 6 THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEAL BUT ACTIVELY PURSUING IT. 4. IN THE INSTANT CASE, RECORD WOULD SHOW THAT EFFECTIVELY ENOUGH OPPORTUNITIES HAVE BEEN GIVEN BY THIS OFFICE. THE NOTICES HAVE BEEN ISSUED BY THIS OFFICE DIRECTING THE APPELLANT TO ATTEND THE APPELLATE PROCEEDINGS ON THE GIVEN DATE. HOWEVER, THE APPELLANT HAS NOT BOTHERED TO ATTEND THE PROCEEDINGS. 5. IN THE GIVEN CIRCUMSTANCES, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED FOR THE NON-PROSECUTION. 6. IN THE RESULT, THE APPEAL OF THE APPELLANT IS DISMISSED. 6.1 AFTER PERUSING THE AFORESAID FINDING OF THE LD. CI T(A), WE ARE OF THE CONSIDERED VIEW THAT THAT LD. CIT(A) HAS NOT DE ALT WITH THE MERITS OF THE CASE AND PASSED A NON-SPEAKING EXPARTE ORDER, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUES IN DISPUTE AFRESH, IN ACCORDANCE WITH LAW , AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE PARTIES AND PASS A SPEAKING ORDER. HOWEVER, THE ASSESSEE IS ALSO DIRECTED TO FULLY COO PERATE WITH THE LD. CIT(A) AND PRODUCE ALL THE DOCUMENTS BEFORE HIM TO SUBSTANTIATE ITS CLAIM AND NOT TO TAKE ANY UNNECESSARY ADJOURNMENT. 7 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15/01/2018. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEM BER DATED:15/01/2018 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR 8