Zion Promotors & Developers (P) Ltd., Faridabad V. ACIT, Faridabad

ITA 6200/DEL/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5178 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Principle of natural justice
• Section: 143(1); 68; 6

Judgement Text

1 ITA NO. 6200/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND SH. PRASHANT MAHARISHI, ACCOUN TANT MEMBER I.T.A. NO. 6200/DEL/20 16 (A.Y 2007-08) (THROUGH VIDEO CON FERENCING) ZION PROMOTERS & DEVELOPERS (P) LTD. 560, SECTOR-16A FARIDABAD AAACZ2271K (APPELLANT) VS ACIT CIRCLE-II FARIDABAD (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 16/09/2016 PASSED BY CIT(A)-FARIDABAD FOR ASSESSMENT YEAR 200 7-08. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN LAW AND FA CTS BY SUO-MOTO HOLDING THAT SINCE THE APPELLANT HAS BEEN GRANTED TIME BUT NOT FILED SUBMISSION ON THE ADJOURNED DATE 31.08.16 AND THEREFORE, THE ORDER HA S BEEN PASSED ON AFTER A GAP OF 15 DAYS I.E. ON 16.09.16 EVEN WITHOUT AFFORD ING FURTHER OPPORTUNITY PARTICULARLY WHEN THE ORDER NOT PASSED ON THE FIXED DATE 2. WHETHER THE LD. CIT (A) WAS JUSTIFIED IN LAW AND F ACTS BY HOLDING THAT THE APPELLANT BY SH. V. K. TULSIAN, ADV RESPONDENT BY SH. PRAKASH DUBEY, SR. DR DATE OF HEARING 16.09.2021 DATE OF PRONOUNCEMENT 27.09.2021 2 ITA NO. 6200/DEL/2016 JURISDICTION U/S 147/148 HAS RIGHTLY BEEN EXERCISED BY THE ASSESSING OFFICER AFTER RECORDING THE REASONS AND PROPER APPROVAL OBT AINED AS PER SECTION 151(2) AND THERE ARE NO REQUIREMENT FOR EXERCISE TH E SAME ON A SINGLE DAY AND NO NEED TO SERVE THE REASONS ON THE SAME DATE. 3. WHETHER THE LD. CIT (A) WAS JUSTIFIED BY HOLDING T HAT SECTION 147/148, WAS NOT WRONGLY INVOKED, AND IT IS BASED ON COMPLET E INFORMATION AND THE REASONS WERE RECORDED AND APPROVAL OBTAINED AS PER THE LAW AS WELL AS BY HOLDING THAT THE EXERCISE OF JURISDICTION ARE NOT F OR ROVING AND FISHING ENQUIRY. 4. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN LAW AND FA CTS BY HOLDING THAT THE A.O. MADE THE ADDITION OF RS. 70,00,000/- AS UNEXPL AINED CREDIT BASED ON THE REASONS BUT THE LD. CIT (A) AS WELL AS THE LD. A.O. HAS NOT DISPUTED THE EVIDENCE PACED ON THE RECORDS . 5. WHETHER THE LD. CIT (A) WAS JUSTIFIED IN LAW AND F ACTS BY IGNORING THE VARIOUS SUBMISSIONS MADE BASED ON THE MATERIAL IN S UPPORT OF RS. 70,00,000/-. 3. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVEL OPING THE HOUSING SOCIETY FOR READY TO MOVE FLAT ON SALE. THE RETURN OF INCOME FOR A.Y. 2007-08 WAS FILED ON 31.10.2007 DECLARING INCOME OF RS. 9,1 5,173/- AND THE SAME WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961. T HE ASSESSING OFFICER MADE ADDITION OF RS. 70,00,000/- IN RESPECT OF SECTION 6 8 VIDE ASSESSMENT ORDER DATED 27.03.2015. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT (A) HAS PASSED EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE. 3 ITA NO. 6200/DEL/2016 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS PASSED EX-PARTE ORDER. THEREFORE, THE MATTER MAY BE REMANDED BACK TO THE F ILE OF THE CIT(A) FOR PROPER ADJUDICATION AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. THE LD. DR OPPOSED THE SAID CONTENTIONS OF THE A SSESSEE AND SUBMITTED THAT DESPITE GIVING PROPER OPPORTUNITY THE ASSESSEE HAS NOT APPEARED BEFORE THE CIT(A) AND CIT(A) HAS PASSED EX-PARTE ORDER GIVING THE FINDING IN RESPECT OF MERIT AS WELL. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE CIT(A) AND THE REASON EXPLAINED BY THE ASSESSEE IS THAT THE CIT(A) HAS NOT TAKEN COGNIZANCE OF THE ADJOURNMENT LETTER AS THE P OA WAS NOT PROPERLY FILED. THUS, THE CIT(A) HAS NOT GIVEN A PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE ON MERIT. THEREFORE, IT WILL BE APPROPRIAT E TO REMAND BACK THE ENTIRE ISSUE TO THE FILE OF THE CIT (A) FOR PROPER ADJUDIC ATION OF ALL THE ISSUES CONTESTED BY THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APP EAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF SEPTEMBER, 2021 SD/- SD/- (PRASHANT MAHARISHI) (SUCH ITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/09/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4 ITA NO. 6200/DEL/2016 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI