JAWAHAR SINGH, GHAZIABAD V. ITO, WARD- 1(3), GHAZIABAD

ITA 5847/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3593 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 12-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMPOORANANAND
• Assessee Lawyers: SHIVAM BANSAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5847 /DEL/201 7 A.Y. : 2008-09 JAWAHAR SINGH S/O BHORA SINGH, C/O M/S ASHOKRAJ & ASSOCIATES, 19, 2 ND FLOOR, NAVYUG MARKET, GHAZIABD 201 001 UP (PAN: BLLPS4942N) VS. ITO, WARD 1(3), GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : RAJ KUMAR AGGARWAL, & SH. SHIVAM BANSAL, CA DEPARTMENT BY : SH. SAMPOORANANAND, SR. DR ORDER THIS APPEAL IS FILED BY THE ASSESSEE EMANATE OUT OF ORDER DATED 30.6.2017 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD PERTAINING TO THE ASSTT. YEAR 2008-09. THE ASSESSE E HAS RAISED AS MANY AS 07 GROUNDS IN DETAIL, BUT THE EFFECTIVE ISSUE INVOLVED IN THE APPEAL IS RELATING TO NOT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND LD. CIT(A) HAS NOT DEALT THE MATTER ON MERIT OF THE CASE AND PASSE D THE NON-SPEAKING ORDER. FOR THE SAKE OF BREVITY, THE DETAILED GROUNDS ARE N OT REPEATED HERE. 2. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL AND REQ UESTED TO SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, BECAUSE NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND T HE APPEAL OF THE ASSESSEE WAS DISMISSED ON ACCOUNT OF NON-PROSECUTION. 2 3. LD. DR HAS STATED THAT ASSESSEE REMAINED NON-COO PERATIVE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) AND IS NOT ENTI TLED FOR ANY LENIENT VIEW FROM THIS BENCH. HENCE, HE REQUESTED THAT THE APPEAL FI LED BY THE ASSESSEE MAY BE DISMISSED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER, I AM OF THE VIEW THAT THERE IS NO DOUBT ASSESSEE REMAINED N ON-COOPERATIVE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS MENTIONED THE SAM E IN HIS ORDER DATED 30.6.2017 VIDE PARA NO. 4 TO 6 AT PAGE NO. 4O TO 6, WHICH IS REPRODUCED HEREUNDER:- 4. THIS APPEAL WAS FIXED FOR HARING ON NUMBER OF T IMES, THE DETAILS OF WHICH ARE GIVEN BELOW, BUT NO COMPLIANCE WAS MADE TO ANY OF THE NOTICES ISSUED. ALL THESE NOTIC ES WERE SENT TO THE APPELLANT THROUGH SPEED POST ON THE A DDRESS GIVEN IN THE APPEAL PETITION I.E. FORM NO. 35. S.NO. DATE OF NOTICE DATE FIXED FOR HEARING REMARK 1 4 . 01 .07 1 7 . 1 .07 NONE ATTENDED 2 26.4.2017 03.5.2017 AN APPLICATION FILED FOR ADJOURNMENT AND HEARING WAS FIXED ON 17.5.2017. 3 - 17.5.2017 AN APPLICATION FILED FOR ADJOURNMENT AND HEARING WAS FIXED ON 1.6.2017. 4 - 1.6.2017 AN APPLICATION FILED FOR ADJOURNMENT AND HEARING WAS FIXED ON 14.6.2017 FOR FINAL OPPORTUNITY. 5 14.6.2017 NONE ATTENDED 3 5. FROM THE ABOVE IT IS CLEAR THAT DESPITE SEVERAL OPPORTUNITIES NONE APPEARED ON BEHALF OF THE APPE LLANT FOR HEARING ONLY ADJOURNMENTS APPLICATIONS WERE FILED. HENCE THE APPEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMI SSED FOR NON- PROSECUTION. IN MY ABOVE VIEW, I FIND SUPPORT FROM THE FOLLOWING DECISIONS:- (I) IN THE CASE OF CIT VS. B.N. BHATTACHARGEE & AN OTHER 118 ITR 461 (RELEVANT PAGES 477 & 478) WHEREIN THEI R LORDSHIPS HAVE HELD THAT 'THE APPEAL DOES NOT MEAN MERELY FIL ING OF APPEAL BUT EFFECTIVELY PURSUING IT.' (II) IN THE CASE OF ESTATE OF LATE TUKOJI RAO HOLK ER VS. CWT 223 IR 480 (MP) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF ASSESSEE IN DEFAULT MADE FOLLOWING OBSE RVATIONS IN THEIR ORDER. 'IF THE PARTLY AT WHOSE INSTANCE THE R EFERENCE IS MADE FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEAR ING OF THE REFERENCE, THIS COURT IS NOT BOUND TO ANSWER THE RE FERENCE. (III) IN THE CASE OF CIT VS. MULTPLAN INDIA PVT. L TD. 38 ITD 320 (DEL). THE APPEAL FILED BY THE REVENUE BEFORE T HE TRIBUNAL WHICH WAS FIXED FOR HEARING BUT ON THE DATE OF HEAR ING NOBODY REPRESENTED NEITHER THE REVENUE APPLICANT, NOR ANY COMMUNICATION FOR ADJOURNMENT WAS RECEIVED. THERE WAS NO COMMUNIC ATION OR INFORMATION AS TO WHY 'REVENUE CHOOSE TO REMAIN ABS ENT ON THAT DATE. THE HON'BLE TRIBUNAL LAID DOWN THE' PRINCIPLE THAT ON THE BASIS OF INHERENT POWER THE APPEAL FILED BY THE APP ELLANT CAN BE TREATED AS UN-ADMITTED. - - - - - 4 6. THEREFORE, KEEPING IN VIEW OF THE ABOVE, THE APP EAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED FOR NON-PROSECU TION. ON MERITS OF THE CASE IT IS NOTICED THAT APPELLANT HAS SOLD P ROPERTY WORTH 32,09,000/- AND CORRESPONDING INCOME HAS, BEEN DECL ARED BY THE APPELLANT. DESPITE SEVERAL OPPORTUNITIES GIVEN DURI NG ASSESSMENT PROCEEDINGS AS WELL. AS APPELLATE PROCEEDINGS TO TH E APPELLANT NO EVIDENCE COULD BE PRODUCED EXEMPTING APPELLANT FROM CAPITAL GAIN TAX FOR SALE OF PROPERTY. IN VIEW OF THESE FACTS AN D ABOVE POSITION OF LAW THERE IS NO NEED TO INTERFERE WITH THE ACTIO N OF THE AO, HENCE, THE ADDITION MADE BY THE AO IS UPHELD. 5. AFTER GOING THROUGH THE ABOVE FINDING OF THE LD. CIT(A), I AM OF THE VIEW THAT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON- COOPERATIVE BEFORE THE REVENUE AUTHORITIES, BUT I AM OF THE OPINION THAT L D. CIT(A) HAS CONFIRMED THE ASSESSMENT ORDER IN A ROUTINE MANNER, WITHOUT DISCU SSING IN DETAIL THE FACTS AND CIRCUMSTANCE OF THE CASE AND ALSO DID NOT DEA L THE ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER AND ONLY CONFIRMED THE ACTION OF THE AO, WHICH IN OUR OPINION, IS NOT IN ACCORDANCE WITH THE PRINCIPL ES OF NATURAL JUSTICE AND IT IS A ERRONEOUS APPROACH. IT IS A SETTLED LAW THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. 5.1 IN THIS REGARD I DRAW SUPPORT FROM HONBLE AP EX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 HAS HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. 5.2 I FURTHER DRAW SUPPORT FROM THE APEX COURT DE CISION IN THE CASE OF KAPURCHAND SHRIMAL VS. CIT, 131 ITR 451 WHEREIN IT WAS HELD THAT THE APPELLATE AUTHORITY HAS JURISDICTION AS WELL AS THE DUTY TO CORRECT THE ERRORS IN 5 THE PROCEEDINGS UNDER APPEAL AND TO ISSUE OF NECESS ARY, APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION APPEAL IS P REFERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATER AFRESH, UNLESS FORBI DDEN FROM DOING SO BY STATUTE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENTS, I REMIT BACK THE ISSUES TO THE FILES OF THE LD. COMMISSION ER OF INCOME TAX (APPEALS) TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES I NVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH, AFTER PASSING A SPEAKING O RDER, AFTER CONSIDERING ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON 01-02-2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 01/02/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT ( A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES