Suraj Ali Khan, New Delhi V. ITO, New Delhi

ITA 6/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3425 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T R TALWAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. AMIT SHUKLA , JM IT A NO. 06 /DEL/201 7 : ASSTT. YEAR : 2009 - 10 SURAJ AL I KHAN, 93, GROUND FLOOR, SHAHPUR JAT, NEW DELHI - 110049 VS INCOME TAX OFFICER, WARD - 62(3 ), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A QKPK4335Q ASSESSEE BY : SH. T. R. TALWAR, ADV. REVENUE BY : SH. ANIL KUMAR SHARMA , SR. DR DATE OF HEARING : 11 .0 4 .201 7 DATE OF PRONOUNCE MENT : 11 .04. 201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31.10.2016 OF LD. CI T (A) - 20 , NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED: I) IN NOT ALLOWING EFFECTIVE OPPORTUNITY TO THE APPELLANT TO REPRESENT HIS CASE AS THE LAST NOTICE WAS NOT SER VED ON HIM, BEING OUT OF DELHI TO HIS HOME TOWN IN KOLKATA ON THE OCCASION OF DIWALI. II) IN SUSTAINING THE ADDITION OF RS.30,79,899/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED RECEIPTS AS PER 26AS, WHILE THE ITA NO. 06/DEL/2017 SURAJ ALI KHAN 2 CORRESPONDING EXPENSES TO EARN T HOSE RECEIPTS HAD NOT BEEN TAKEN INTO ACCOUNT. III) IN IGNORING THE FACT THAT THE APPELLANT IS TO BE ASSESSED ON THE INCOME EMBEDDED IN THE GROSS RECEIPTS AND NOT ON THE GROSS RECEIPTS ITSELF. IV) IN IGNORING THE EXPENSES INCURRED BY THE ASSESSEE RELATIN G TO THE GROSS RECEIPTS WHICH HAD BEEN OMITTED TO BE TAKEN INTO ACCOUNT OF A BANK ACCOUNT OF A BANK ACCOUNT MAINTAINED BY THE ASSESSEE DUE TO CLERICAL MISTAKE OF THE ACCOUNTANT. THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, SUBSTITUTE, DELETE ANY OF THE GROU NDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3 . THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT SERVING THE NOTICE OF HEARING. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE REITERATED T HE CONTENTS OF THE GROUNDS OF APPEAL AND ALSO SUBMITTED THAT THE LD. CIT(A) PASSED THE EX - PARTE ORDER WITHOUT AFFORDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD AND THAT THE NOTICE OF HEARING WAS ALSO NOT SERVED UPON THE ASSESSEE. 4 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 5 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, IT IS NOTICED THAT THE LD. CIT(A) IN THE IMPUGNED ORDER NOWHERE STATED THAT ITA NO. 06/DEL/2017 SURAJ ALI KHAN 3 THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. SHE ALSO MENTIONED THAT THE LAST DATE OF HEARING WAS 17.10.2016 AND THE ORDER WAS PASSED EX - PARTE ON 31.10.2016. IT IS WELL SETTLED THAT NOBODY SHALL BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, IT APPEARS THA T THE DUE AND REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER BACK TO THE 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. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (O RDER PRONOUNCED IN THE OPEN COURT ON 11 /0 4 /2017 ) SD/ - SD/ - (AMIT SHUKLA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /04 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR