Durga Trading Co., Noida V. ITO, Ward- 1(3), Noida

ITA 5674/DEL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7899 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: UMANG LUTHRA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-5674/DEL/2017 (ASSESSMENT YEAR-2014-15) DURGA TRADING CO., NIYADAR GANJ, DADRI, G.B. NAGAR, NOIDA, UTTAR PRADESH. PAN NO. AAGFD5092D (APPELLANT) VS ITO WARD 1(3), NOIDA. (RESPONDENT) APPELLANT BY MS. UMANG LUTHRA, ADV. RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 30.06.2017 OF THE LD. CIT(APPEALS)-1, NOIDA R ELEVANT TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BAD BOTH IN THE EYES OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING EX-PARTE ORDER WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, ITA NO. 5674/D/2017 2 IN PASSING THE ORDER EX-PARTE DESPITE THE FACT THAT THE ASSESSEE WAS PREVENTED FROM APPEARING BECAUSE OF THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN DISMISSING THE APPEAL OF THE ASSESSEE, WITHOUT GIVING ANY FINDINGS ON FACTS OF THE CASE. 5. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 24,00,000/- MADE BY THE AO ON ACCOUNT OF UNSECURED LOAN. (II) THAT THE ADDITION WAS MADE BY THE AO DESPITE THE ASSESSEE BRINGING ON RECORD ALL THE MATERIAL AND EVIDENCES TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS AS WELL AS THE GENUINENESS OF TRANSACTION. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. ITA NO. 5674/D/2017 3 3. LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT( A) HAS NOT GIVEN PROPER OPPORTUNITY TO ASSESSEE TO PRESE NT HIS CASE; PASSED THE EXPARTE ORDER DESPITE THE FACT THAT THE ASSESSEE WAS PREVENTED FROM APPEARING BECAUSE OF THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF T HE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AND PASS A SPEA KING ORDER THEREON, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER, I AM OF THE VIEW THAT LD. CIT(A) H AS PASSED THE EXPARTE ORDER WITHOUT DISCUSSING IN DETAIL THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO DID NOT DEAL TH E ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER BY DISMISSIN G THE APPEAL OF THE ASSESSEE. HOWEVER, IT IS A SETTLED LA W THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. 5.1 IN THIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS HELD THAT EVEN AN ADMIN ISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURA L JUSTICE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENT, AS AFORESAID, I REMIT ITA NO. 5674/D/2017 4 BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO POINT OUT THE DEFECT, I F ANY, SPECIFICALLY AND THEN CONSIDER EACH AND EVERY ASP ECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH AND PASS A SPEAKING ORDER BY CONSIDER ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASS ESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . HOWEVER, THE ASSESSEE IS DIRECTED TO FILE ALL THE EVIDENCES/DOCUMENTS ETC. BEFORE HIM TO SUBSTANTIATE HIS CASE. ASSESSEE IS ALSO DIRECTED NOT TO TAKE ANY UNNECESSA RY ADJOURNMENT IN THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 23/04/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 23/04/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR