Unialmaz , New Delhi V. ACIT, Circle- 32(1), New Delhi

ITA 6029/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9272 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 6029/DEL/2018 ASSESSMENT YEAR: 2010-11 UNIALMAZ, VS. ACIT, CIRCLE 32(1), SHOP NO. 31, (FF), NEW DELHI MGF METROPOLITAN MALL, 13 TH FLOOR, CIVIC CENTRE SAKET, NEW DELHI 110 017 NEW DELHI 110 017 (PAN: AAAFU7754M) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. LALIT MOHAN, CA REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 13.7.2018 PASSED BY THE LD. CIT(A)-11, NEW DELHI RELATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING ORDER MADE UNDER 143(3) R.W.S. 147 OF INCOME TAX ACT BY THE LD, A.O WHICH I S ILLEGAL BAD IN LAW AND ULTRA VIRUS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE VALIDITY OF INITIATING PROCEEDINGS U/S 147 OF THE ACT BY ISSUING NOTICE U/ S 148 OF THE ACT MORE SO WHEN STATUTORY CONDITIONS PRESCRIBE D U/S 147 TO 152 WERE NOT COMPLIED WITH. 2 3. THAT HAVING REGARD TO THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING THE ACTION OF A.O IN MAKING ADDITION /DI SALLOWING OF RS.12,68,713/- ON ACCOUNT OF ALLEGED BOGUS PURCHASE S. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN REJECTING THE CLAIM OF THE APPELLANT WITHOUT ALLOWING REASONABLE OPPORTUNITY OF THE HEAR ING IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 5. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE LD . A.O. HAD NEITHER PROVIDED COPY OF MATERIALS AND STATEMENT RE LIED UPON BY HIM (THOUGH A.O HAS RECORDED INCORRECT FACT OF P ROVIDING OF COPY OF STATEMENT)NOR ALLOWED ANY OPPORTUNITY TO TH E APPELLANT TO CROSS EXAMINE THOSE PARTIES WHO HAVE B EEN ALLEGED TO HAVE PROVIDED THE ACCOMMODATION ENTRY OF SUCH PURCHASES AND THEREFORE THE ORDER IS LIABLE TO BE A NNULLED. 6. THE APPELLANT CRAVES LEAVE TO AMEND, OR ALTER A NY GROUND(S) OR ADD NEW GROUND(S) WHICH MAY BE NECESSARY EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. THE APPELLANT PRAYS THAT THE DISALLOWANCE ON ACCOUN T OF ALLEGED BOGUS PURCHASES CONFIRMED BY THE LD CIT(A) TO THE EXTENT OF RS.12,68,713/- MAY KINDLY BE DELETED. 3 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING TH E EX-PARTE ORDER AND THAT TOO WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT OBSERVING THE PRINCIPLE OF NATURAL JUSTICE AND NOT PASSED A SPEAKING ORDER. THEREFORE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO D ECIDE THE SAME AFRESH, AS PER LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE AND WITH THE DIRECTIONS TO CONSIDER ALL TH E DOCUMENTS/EVIDENCES FILED BY THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS GIVEN VARIOUS OPPORT UNITIES TO THE ASSESSEE, BUT THE ASSESSEE REMAINED NON-COOPERATIVE AND AS A RESULT THEREOF, THE LD. CIT(A) HAS NO OPTION BUT TO DISMIS S THE APPEAL OF THE ASSESSEE. BUT HE HAS NO OBJECTION FOR SETTING AS IDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SA ME AFRESH, SUBJECT TO THE CONDITION THAT IF THIS BENCH DIRECTED THE ASSESSEE THROUGH HIS COUNSEL TO APPEAR BEFORE THE LD. CIT(A) TO SUBSTANTIATE ITS CLAIM ON THE FIXED DATE AND LD. CIT(A) WILL NOT ISSUE ANY NOTICE TO THE ASS ESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AS WELL AS THE RELEVANT PROVISIONS OF LAW, I AM OF THE VIEW TH AT THERE IS NO DOUBT THAT 4 ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A) AND THE LD. CIT(A) HAS PASSED THE EXPARTE ORDER, WITHOUT DISCU SSING IN DETAIL THE FACTS AND CIRCUMSTANCE OF THE CASE AND ALSO DID N OT DEAL THE ISSUE ON MERIT PROPERLY AND PASSED A NON-SPEAKING ORDER, WHI CH IN MY OPINION, IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE AND IT IS AN ERRONEOUS APPROACH. AFTER READING SECTION 250(6) OF THE ACT, I AM ALSO OF THE CONSIDERED VIEW THAT ASSESSEES CASE SHOULD BE DECIDED ON MERITS, WHICH THE LD. CIT(A) HAS NOT DONE. HOWEVER, IT IS A SETTLED LAW THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. I N THIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SA HARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS BEEN HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. 5.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND IN THE INTEREST OF JUSTICE AS WELL AS AGREED BY BOTH THE PARTIES, I REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR HEARING ON 26.06.2019 AT 10.00 AM WITH THE DIRECTIONS TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED I N THE APPEAL AND DECIDE THE SAME AFRESH, AFTER CONSIDERING ALL THE EVIDENCE S/DOCUMENTS AND PASS A SPEAKING ORDER. IT IS MADE CLEAR THAT NO NOTICE F OR HEARING WILL BE ISSUED BY THE LD. CIT(A). ASSESSEE IS ALSO DIRECTED THROU GH HIS COUNSEL TO APPEAR BEFORE THE LD. CIT(A) ON 26.06.2019 AT 10.00 AM FOR HEARING TO SUBSTANTIATE HIS CASE AND FILE ALL THE NECESSARY DO CUMENTS BEFORE HIM AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT IN THE CAS E. 5 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 03/04/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 03/04/2019 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