M/s. Hind Builders Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 63/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3044 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 04-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Keywords: Set aside
• Section: 271(1)(c); 274

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI , ! #$ . % , ' ( BEFORE MS. SUSHMA CHOWLA, VICE PRESIDENT & DR.B.R. R.KUMAR, AM ) / ITA NO.63/DEL/2017 * + + / ASSESSMENT YEAR 2005-06 HIND BUILDERS PVT.LTD. B-3, FRIENDS COLONY (WEST), MAIN MATHURA ROAD, NEW DELHI-110065. PAN-AABCH0810P .......... ,- /APPELLANT VS THE ITO, WARD-11(3), NEW DELHI. . ./,- / RESPONDENT ,-01 / APPELLANT BY : NONE (APPLICATION REJECTED) ./,-01 / RESPONDENT BY : SH. S.N.MEENA, SR.DR 02' / DATE OF HEARING : 04.03.2020 34 02' / DATE OF PRONOUNCEMENT: 09.03.2020 5 / ORDER PER SUSHMA CHOWLA,VP THE PRESENT APPEAL FILED BY ASSESSEE IS AGAINST OR DER OF CIT(A)-4, NEW DELHI DATED 23.11.2016 RELATING TO ASSESSMENT YEAR 2005-06 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) R.W.S 274 OF THE INC OME-TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) FOR DECIDING THE APPEAL EX-PARTE QUA THE ASSESSEE AND WITHOUT GOING INTO THE MERITS OF THE ADDITION. ITA NO.63/DEL/2017 ASSESSMENT YEAR 2005-06 2 3. THE LD.AR FOR THE ASSESSEE MOVED AN APPLICATION FOR ADJOURNMENT WHICH IS REJECTED/REFUSED, AS CIT(A) HAS PASSED THE EX-P ARTE ORDER WITHOUT ALLOWING SUFFICIENT OPPORTUNITY OF HEARING AND WITHOUT GOING INTO THE MERITS OF THE CASE. 4. THE LD. DR FOR THE REVENUE ON THE OTHER HAND POI NTED OUT THAT SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE ASSESSEE. 5. WE HAVE HEARD LD. DR FOR THE REVENUE AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IT IS INCUMBENT UPON THE CIT(A) TO DECIDE THE APPEAL AFTER HEARING THE PARTIES AND STATE THE POINTS FOR DETERMINATION, THE DECISIO N THEREON AND ALSO THE REASONS FOR THE DECISION. WHILE DECIDING THE APPEAL , CIT(A) HAS NO POWER TO DISMISS THIS APPEAL FOR NON PROSECUTION BY RELYING ON THE RATIO/S LAID DOWN IN CIT VS. B.N. BHATTACHARYA & ANOTHER 118 ITR 461 (SC ) AND LATE TUKOJI RAO HOLKER VS. CWT 223 ITR 480 (MP). IN THESE FACTS AND CIRCUMSTANCES, WHERE THE CIT(A) HAD DISMISSED THIS APPEAL BY APPLYING THE AB OVE SAID RATIOS, THE ORDER OF THE LEARNED CIT(A) SUFFERS FROM INFIRMITY. THE CIT( A) WHILE DECIDING THE ISSUE ON MERITS HAVE ALSO TO GIVE REASONS FOR COMING TO THE CONCLUSION AND IN THE ABSENCE OF THE SAME, THE ORDER OF THE CIT(A) AGAIN SUFFERS FROM INFIRMITY. IN THIS APPEAL, WE FIND THAT THE CIT(A) HAS DISMISSED THE A PPEAL EX-PARTE QUA THE ASSESSEE AND HAD FAILED TO DECIDE THE APPEAL BY PAS SING REASONED ORDER. 6. ACCORDINGLY, WE SET ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH DIRECTION TO THE CIT(A) TO DECIDE THE ISSUE ON MERI TS BY A REASONED ORDER, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. FURTHER THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT( A) AND PARTICIPATE IN THE ITA NO.63/DEL/2017 ASSESSMENT YEAR 2005-06 3 APPELLATE PROCEEDINGS. THIS APPEAL IS THUS DECIDED ON THIS PRELIMINARY ISSUE WITHOUT GOING INTO THE MERITS OF THE ADDITION. 7. HENCE THIS APPEAL IS RESTORED BACK TO THE FILE O F CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH NOTICES IS SUED BY THE CIT(A). THE PRELIMINARY ISSUE RAISED IN THIS APPEAL IS THUS DEC IDED IN FAVOUR OF ASSESSEE. SINCE THIS APPEAL IS BEING DECIDED ON THE PRELIMIN ARY ISSUE, WE ARE NOT ADDRESSING THE ISSUE RAISED ON MERIT. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 TH MARCH, 2020. SD/- SD/- (DR.B.R.R.KUMAR) (SUSHMA CHOWLA) ' ( / ACCOUNTANT MEMBER / VICE PRESIDENT / DATED : 09 TH MARCH, 2020 * AMIT KUMAR * 50.*2678729 COPY OF THE ORDER IS FORWARDED TO : 1. ,- / THE APPELLANT 2. ./,- / THE RESPONDENT 3. :2 ; < / THE CIT(A) 4. = :2 / THE PR. CIT 5. 6. 7>?.*2* @ @ / DR, ITAT, DELHI ?#+A9 GUARD FILE. 5 / BY ORDER , /72.*2 // TRUE COPY // B CD(E , @ ASSISTANT REGISTRAR, ITAT, DELHI