M/s Uniward Telecom Ltd., New Delhi V. DCIT, New Delhi

ITA 5558/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1372 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 23-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEETA SINGH
• Assessee Lawyers: DHARENDER KUMAR
• Keywords: Reopening of assessment; Opportunity of being heard; Principle of natural justice; Difference of opinion; Change of opinion
• Section: 143(3); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A PILLAI , JM ITA NO. 5558/DEL/2015 : ASSTT. YEAR : 2005 - 06 UNIWORD TELECOM LTD., A1/24, AZAD APARTMENT, AUROBINDO MARG, NEW DELHI - 110016 OR SATISH AGGARWAL & ASSOCIATES, 4/5B, 1 ST FLOOR, ASAF ALI ROAD, NEW DELHI VS DCIT, CIRCLE - 18(1), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AACU5105D ASSESSEE BY : SH. DHARENDER KUMAR , ADV. REVENUE BY : SMT. MEETA SINGH , SR. DR DATE OF HEARING : 06.09 .201 8 DATE OF PRONOUNCE MENT : 07 .09 .201 8 ORDER PER N. K. SAINI, AM : THIS IS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.08.2015 OF LD. CIT(A) - 22, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: (1) THAT THE ORDER OF THE LEARNED CIT (APPEALS) - 22 NEW DELHI IS ARBITRARY, BIASED AND BAD IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE CASE IN SO FAR AS IT CONFIRMS THE ADDI TION MADE BY THE ASSESSING OFFICER. (2) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN NOT QUASHING THE ASSESSMENT ORDER PASSED PURSUANT TO ILLEGAL REOPENING OF ASSESSMENT. (3) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN IGNORING THE FACT TH AT THE ORIGINAL ASSESSMENT OF THE ITA NO. 5558/DEL/2015 UNIWORD TELECOM LTD. 2 APPELLANT HAD BEEN COMPLETED UNDER SECTION 143(3) AND ISSUE OF NOTICE UNDER SECTION 148 AMOUNTED TO CHANGE OF OPINION. (4) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN PASSING AN EX - PARTE ORDER WITHOUT AFFORDING A PROPER AND MEANINGFUL OPPORTUNITY TO THE APPELLANT TO REPRESENT ITS CASE. (5) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 43,49,966 / - IN RESPECT OF PURCHASES MADE FROM M/S. SINGH ELECTRONICS AND M/S. TONY ELECTRONICS BEING THE 10% OF PURCHASES MADE FROM THEM IGNORING THE RATIO OF THE DECISION OF IT AT AND DELHI HIGH COURT IN THEIR ORDERS AGAINST ORIGINAL ASSESSMENT FOR THE ASSESSMENT YEAR 2005 - 06. (6) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING AN ADDITION OF RS. 3,83,80,000 / - MADE UNDER SECTION 68 BY THE ASSESSING OFFICER. (7) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING AN ADDITION OF RS. 7,67,000 / - MADE BY THE ASSESSING OFFICER ON CONJECTURES AND SURMISES FOR ALLEGED PAYMENT OF COMMISSION @ 2% ON ALLEGED ACCOMMODATION ENTRY OF RS. 3,83,80,000 / - OBTAINED BY THE APPELLANT. (8) THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT WITHOUT PROVIDING AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE THE ALLEGED ACCOMMODATION ENTRY PROVIDER THUS VIOLATING THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY. (9) THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEAR ING. ITA NO. 5558/DEL/2015 UNIWORD TELECOM LTD. 3 3. VIDE GROUND NO. 4, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING AN APPROPRIATE OPPORTUNITY OF BEING HEARD GRANTED TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FIL ED THE RETURN OF INCOME ON 31.10.2005 DECLARING AN INCOME OF RS.1,08,85,191/ - . HOWEVER, THE ASSESSMENT WAS FRAMED AT AN INCOME OF RS.5,84,36,706/ - BY MAKING THE VARIOUS ADDITIONS. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) OBSERV ED THAT VARIOUS NOTICES WERE ISSUED, HOWEVER, THERE WAS NO COMPLIANCE, HE DISMISSED THE APPEAL EX - PARTE BY OBSERVING IN PARAS 2 & 4 OF THE IMPUGNED ORDER AS UNDER: 2. THE DETAILS OF NOTICES ISSUED ARE AS UNDER: SL. NO. DATE OF NOTICE DATE OF HEARING COMPL IANCE 1. 31.07.2014 20.08.2014 ADJOURNMENT REQUEST. ADJOURNED TO 27.08.2014 2. 27.08.2014 ADJOURNMENT REQUEST. ADJOURNED TO 19.09.2014 3. 17.09.2014 ADJOURNMENT REQUEST. ADJOURNED TO 20.10.2014 4. 20.10.2014 ADJOURNMENT REQUEST. ADJOURNED TO 12.11.2 015 5. 12.11.2014 ADJOURNMENT REQUEST. 6. 27.01.2015 09.02.2015 ADJOURNMENT REQUEST FILED ON 20.01.2015. ADJOURNED TO 04.03.2015 7. 04.03.2015 NO COMPLIANCE 8. 10.04.2015 28.04.2015 NO COMPLIANCE. NOTICE WAS SERVED ON ITA NO. 5558/DEL/2015 UNIWORD TELECOM LTD. 4 AUTHORIZED REPRESENTATIVE. 9. 0 8.05.2015 20.05.2015 ADJOURNMENT REQUEST. ADJOURNED TO 27.05.2015 10. 27.10.2015 ADJOURNED TO 23.06.2015 ON REQUEST 11. 23.06.2015 NO COMPLIANCE 12. 21.07.2015 13.08.2015 LETTER/NOTICE RETURNED UNSERVED. AR INFORMED. ADJOURNMENT REQUEST DATED 13.08.2 015 FILED. ADJOURNED TO 20.08.2015. 13. 20.08.2015 NO COMPLIANCE -------------------------- ------------------------- 4. FROM A PERUSAL OF ABOVE, IT IS APPARENT THAT THE APPELLANT HAS BEEN GRANTED SEVERAL OPPORTUNITIES, BUT, THERE HAS BEEN NO COMPLIANC E EXCEPT FILING OF FEW ADJOURNMENT APPLICATIONS. THE LAST ADJOURNMENT APPLICATION WAS FILED ON 13.08.2015 AND THE APPEAL WAS ADJOURNED TO 20.08.2015. HOWEVER, THERE HAS BEEN NO COMPLIANCE ON 20.08.2015. 6 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) WITHOUT PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD, DISMISSED THE APPEAL OF THE ASSESSEE AND EVEN HE HAS NOT DISCUSSED THE ISSUES RAISED BY THE ASSESSEE ON MERIT. 7 . IN HER RIVAL SUBMISSIONS, THE LD. SR. DR STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT VARIOUS OPPORTUNITIES OF BEING HEARD WERE PROVIDED BUT THE ASSESSEE SOUGHT ADJOURNMENT AND EVEN ON THE LAST DATE I.E. ON 20.08.2015 WHEN THE CASE WAS FIXED FOR HE ARING, THERE WAS NO COMPLIANCE. ITA NO. 5558/DEL/2015 UNIWORD TELECOM LTD. 5 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED FROM PARA 2 OF THE IMPUGNED ORDER THAT THE LD. CIT(A) MENTIONED T HAT THE LETTER/NOTICE FOR THE DATE OF HEARING ON 30.08.2015 WAS RETURNED UNSERVED AND THE CASE WAS ADJOURNED TO 20.08.2015 BUT THERE WAS NO COMPLIANCE ON THE SAID DATE. HOWEVER, IT IS NOT CLEAR AS TO WHETHER THE LAST DATE OF HEARING I.E. 20.08.2015 WAS COM MUNICATED TO THE ASSESSEE OR NOT. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE , THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO T HE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 07 /09 /2018) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /09 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEA LS) 5 . DR: ITAT ASSISTANT REGISTRAR