Sonia Sharma, Delhi V. ACIT, New Delhi

ITA 5529/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2916 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 17-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Assessee Lawyers: V K TULSIAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO. - 5528 TO 5530 /DEL/201 5 (ASSESSMENT YEAR - 2009 - 10 TO 2011 - 12 ) SONIA SHARMA, 26/58, WEST PATEL NAGAR, DELHI - 110008 PAN - AARPS7234B (APPELLANT) VS ACIT, CENTRAL CIRCLE - 3, NEW DELHI (RESPONDENT ) APPELLANT BY SH.V.K.TULSIAN, CA RESPONDENT BY SH.YATENDRA SINGH, SR.DR ORDER PER DIVA SINGH, JM THESE THREE APPEALS ARE BEING DECIDED BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE AS FACTS, CIRCUMSTANCES AND ARGUMENTS OF THE PARTIES BEFORE THE BENCH REMAINED IDENTICAL IN EACH OF THESE APPEALS. BY THE PRESENT APPEALS, THE ASSESSEE ASSAILS THE CORRECT NESS OF THE SEPARATE ORDERS DATED 21.07.2015 OF CIT(A) - XXVI, NEW DELHI PERTAINING TO 2009 - 10 TO 2011 - 12 ASSESSMENT YEARS ON THE VARIOUS GROUNDS INCLUDING GROUND NO.1 WHICH IS FOUND TO BE IDENTICAL IN ALL THE THREE APPEALS. THE SAME IS REPRODUCED HEREUNDER FROM ITA NO.5528/DEL/2015 : - 1. WHETHER THE LD.CIT(A) WAS JUSTIFIED IN UPHOLDING THE A.O. ORDER JUST IN MECHANICAL WAY, DUE TO NON APPEARANCE AND NON FILING OF SUBMISSION, EVEN WITHOUT APPRECIATING THE STATEMENT OF FACTS AVAILABLE ON THE RECORD AND PARTICULAR LY NEITHER IOTA OF EVIDENCE NOR WAS ANY TANGIBLE EVIDENCE BROUGHT ON RECORD OUT OF THE SEARCH OPERATION TO SUBSTANTIATE THE ADDITIONS. 2. THE LD.AR INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITTED THAT AN EX - PARTE ORDER HAS BEEN PASSED BY THE CIT( A) MAKING REFERENCE TO VARIOUS DATES ON WHICH THE ASSESSEE WAS STATED TO HAVE BEEN FOUND TO BE NOT REPRESENTED. IT WAS DATE OF HEARING 17 . 11 .2015 DATE OF PRONOUNCEMENT 01 . 0 1 .201 6 I.T.A .NO. - 5528 TO 5530/DEL/2015 PAGE 2 OF 3 HIS SUBMISSION THAT PERUSAL OF THE IMPUGNED ORDER WOULD SHOW THAT ON MOST O F THESE DATES AN ADJOURNMENT HAD BEEN SOUGHT BY THE ASSESSEE AND ULTIMATELY ON THE LAST DATE OF HEARING, THE APPEAL S W ERE DISMISSED IN LIMINE HOLDING THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE PRESENT APPEAL BY SEPARATE ORDERS DATED 21.07.2015 . 2.1. ADDRESSING THE REASONS FOR NON - APPEARANCE AND SEEKING TIME IT WAS SUBMITTED THAT THE ASSESSEE WAS AN INDIVIDUAL WHOSE PREMISES WERE UTILIZED BY PERSONS CONNECTED WITH STOCK GURU INDIA AND WHO HAD BEEN SEARCHED. IT WAS SUBMITTED THAT SINCE THE FILE OF THE ASSESSEE AND THE RELEVANT PAPERS REMAINED WITH THE OTHER PEOPLE AND THEIR COUNSEL AND THE ASSESSEE LADY DID NOT HAVE THE REQUISITE DOCUMENTS SHE WAS UNABLE TO MAKE ANY EFFECTIVE REPRESENTATION AND THUS WAS FREQUENTLY SEEKING AN ADJOURNMENT. IT WAS HIS SUBMISSION THAT IN THE FACTS OF THE PRESENT CASE, THE ASSES SEE IS SERIOUS IN PURSUING THE APPEAL S AND THE ADDITIONS MADE THEREIN AND ONLY SINCE THE PECULIAR FACTS WHERE THE RELEVANT DOCUMENTS WERE NOT AVAILABLE WITH HER TIME HAD BEEN SOUGHT. THE LD.AR GAVE HIS ORAL UNDERTAKING THAT IN THE EVENTUALITY THE APPEAL S ARE RESTORED , T HE ASSESSEE WOULD BE IN A POSITION TO MAKE A N EFFECTIVE REPRESENTATION AND THE ISSUES MAY BE RESTORED BACK TO THE FILE TO THE CIT(A) IN ORDER TO AFFORD AN OPPORTUNITY OF BEING HEARD. 3. THE LD. SR. DR DID NOT OPPOSE THE REQUEST SO MADE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE AS IT DOES NOT MEET THE STATUTORY REQUIREMENTS AS SET OUT IN SUB - SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961. THE STATUTE MANDATES THAT THE CIT(A) WHILE DECIDING THE APPEAL IS TO SET OUT POINTING FOR DETERMINATION ARISING OUT OF THE GROUNDS AND THE PLEADINGS AND R EASONS FOR HIS CONCLUSION, WE FIND THAT THE SAID EXERCISE IN EACH OF THESE THREE APPEALS IS MISSING. ACCORDINGLY, IN VIEW OF THE ABOVE AND TAKING INTO CONSIDERATION THE ORAL UNDERTAKING GIVEN BY THE LD. AR THAT THE ASSESSEE WOULD MAKE AN EFFECTIVE COMPLIA NCE BEFORE THE CIT(A) , W E DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUES BACK TO THE LD. CIT(A) TAKING INTO CONSIDERATION THE SUBMISSIONS SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE I.T.A .NO. - 5528 TO 5530/DEL/2015 PAGE 3 OF 3 ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS EFFECTIVELY UTILIZED BY THE ASSESSEE AND THE TRUST REPOSED IS NOT ABUSED. WE MA K E IT CLEAR THAT IN THE EVENTUALITY THE ASSESSEE DOES NOT MAKE ANY EFFECTIVE COMPLIANCE , T HE LD. CI T(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE SAID ORDER WAS PRONOUNCED IN THE PRESENCE OF THE PARTIES IN THE OPEN COURT. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 1 S T OF JANUARY , 201 6 . S D / - S D / - (O.P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 0 1 / 0 1 /201 6 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI