S&P Infrastructure Developers Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 6364/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91477 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 13-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SANBHAD RA
• Assessee Lawyers: PANKAJ SRIVASTAVA; SSH VED JAI N
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI INTURI RAMA RAO ITA NO. 6364 & 6365/DEL/2013 ASSESSMENT YEARS: 2009-10 & 2010-11 S&P INFRASTRUCTURES DEVELOPERS PVT. LTD., VS. ASSIS TANT CIT, 907-NEW DELHI HOUSE. RANGE-7, 27-BARAKHAMBA ROAD, NEW DELHI NEW DELHI. (PAN: AAECS6583) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SH. VED JAI N & PANKAJ SRIVASTAVA, ADV. RESPONDENT BY: SHRI V.R. SANBHA DRA, SR. DR DATE OF HEARING : 13 .07.2015 DATE OF PRONOUNCEMENT: 16 :07.2015 ORDER PER I.C. SUDHIR: JUDICIAL MEMBER IN ITA NO. 6364/DEL/2013, THE ASSESSEE HAS QUESTIO NED FIRST APPELLATE ORDER MAINLY ON THE GROUNDS THAT THE LEAR NED CIT(APPEALS) HAS ERRED IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE FIRST APPEAL (GROUND NO.3), UPHOLDING THE DISALLOWANCE OF RS.60,41,703 UNDER SEC. 40(A)(IA) OF THE INCOME-TAX ACT, 1961 (GROUND NO.4(I) TO 5(II) ); & THE DISALLOWANCE OF RS.4,22,275 ON ACCOUNT OF DEPRECIAT ION (GROUND NOS. 6(I) AND 6(II) ). 2 2. THE GRIEVANCE OF THE ASSESSEE IN THE PRESENT APP EAL ALSO REMAINED THAT THE FIRST APPELLATE ORDER HAS BEEN PASSED WITHOUT G IVING ASSESSEE A FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE LEARNED AR SUBMITTED THAT THERE WAS SUFFICIE NT REASON FOR FILING THE FIRST APPEAL DELAYED BY 252 DAYS SINCE THE ORDE R WAS RECEIVED BY THE CLERK OF THE ASSESSEE COMPANY BUT DID NOT PLACE THE ORDER BEFORE THE RELEVANT OFFICIAL FOR LONG TIME AND WHEN THE BANK ACCOUNT OF THE ASSESSEE WAS ATTACHED ON 17.10.2012 THEN ONLY THE ASSESSEE CAME TO KNOW THAT THE ASSESSMENT ORDER HAS BEEN PASSED AND THE DEMAND OF RS.28,78,209 HAS BEEN RAISED. THE LEARNED AR SUBMITTED THAT BECAUSE THE R ESPONSIBLE OFFICER OF THE ASSESSEE COMPANY WAS IGNORANT OF THE ASSESSMENT ORD ER, THE ASSESSEE CANNOT BE ALLOWED TO SUFFER BY REJECTING THE CONDONATION O F DELAY IN FILING OF THE FIRST APPEAL. HE SUBMITTED FURTHER THAT THE LEARNED CIT(APPEALS) HAS NOT DECIDED THE ISSUES RAISED BEFORE HIM ON ITS MERIT A S EVEN IN EX PARTE ORDER HE WAS SUPPOSED TO DECIDE THE ISSUE ON ITS MERITS ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD. IN SUPPORT, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) GAURAV GOEL VS. ITO ITA NO. 605/DEL/2012 DATE D 09.04.2012; II) M/S. HARYANA LIQUOR CO. VS. ACIT ITA NO. 185 2/DEL/2012 DATED 25.6.2012. 3 4. THE LEARNED AR SUBMITTED FURTHER THAT DUE TO SOM E REASON OR THE OTHER BEYOND THE CONTROL OF THE ASSESSEE, THE CASE OF THE ASSESSEE COULD NOT BE PROPERLY REPRESENTED BEFORE THE AUTHORITIES BELO W AND PRAYED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE LEARNED CIT(APPEALS) WITH THIS UNDERTAKING OF THE ASSESSEE THAT THE ASSESSEE WILL FULLY CO-OPERATE IN THE PROCEEDINGS. 5. THE LEARNED SENIOR DR ON THE OTHER HAND OPPOSED THE APPEAL WITH THIS SUBMISSION THAT IT IS VERY MUCH EVIDENT FROM THE OR DERS OF THE AUTHORITIES BELOW THAT THE ASSESSEE NEITHER COOPERATED WITH THE ASSESSMENT AND FIRST APPELLATE PROCEEDINGS NOR FILED THE REQUIRED DETAIL S. 6. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, WE FIND SUBSTANCE IN THE ABOVE OPPOSITION OF THE LEARNED SE NIOR DR FOR WHICH THE LEARNED AR IN HIS ABOVE SUBMISSIONS HAS GIVEN REASO N. SO FAR AS CONDONATION OF DELAY IN FILING THE FIRST APPEAL IS CONCERNED, WE FIND THAT THE LEARNED CIT(APPEALS) AFTER DISCUSSING THE REASONS F OR THE DELAY AS EXPLAINED BY THE ASSESSEE BEFORE HIM, HAS OBSERVED IN PARA NO . 2.1 OF THE ORDER THAT THERE WAS NO ADEQUATE BASIS OR ANY EVIDENCE AND THU S THE GROUND FOR DELAY DESERVES TO BE DISMISSED AB INITO. AT THE SAME TIME , THE LEARNED CIT(APPEALS) HAS OBSERVED FURTHER THAT TAKING A VER Y LIBERAL VIEW THE 4 GROUNDS OF THE ASSESSEE ARE BEING CONSIDERED ON MER ITS. THUS, BY IMPLICATION, IT APPEARS THAT THE LEARNED CIT(APPEAL S) HAS CONDONED THE DELAY IN FILING THE FIRST APPEAL, THE MOMENT HE DEC IDED TO PROCEED ON APPEAL ON ITS MERIT BUT TO AVOID ANY CONFUSION ON THIS ASP ECT, WE HOLD THAT THE REASONS SHOWN BY THE ASSESSEE FOR THE DELAY IN FILI NG OF THE FIRST APPEAL WAS SUFFICIENT TO CONDONE THE DELAY 252 DAYS IN FILING THE FIRST APPEAL. THE DELAY IS ACCORDINGLY CONDONED AND IN THE INTEREST OF JUST ICE, THE MATTER IS SET ASIDE TO THE FILE OF THE LEARNED CIT(APPEALS) TO DECIDE T HE APPEAL AFRESH ON ITS MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WITH THIS DIRECTION THAT THE ASSESSEE WILL COOPERATE IN THE P ROCEEDINGS. THE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 7. IN RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 8. ITA NO. 6365/DEL/2013 : IN THIS APPEAL, THE ASSESSEE HAS QUESTIONED LEVY OF PENALTY UNDER SEC. 271(1)(C) OF THE INCOME- TAX ACT, 1961 WHICH IS CONSEQUENTIAL TO THE ABOVE QUANTUM APPEAL. THIS APP EAL IS ACCORDINGLY DISMISSED IN VIEW OF THE ABOVE ORDER IN THE QUANTUM APPEAL. 5 9. IN SUMMARY, THE ITA NO. 6364/DEL/2013 IS ALLOWED FOR STATISTICAL PURPOSES AND ITA NO. 6365/DEL/2013 BEING CONSEQUENT IAL THERETO IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON .07 .2015 ( INTURI RAMA RAO ) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: /07/2015 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 6 DATE DRAFT DICTATED ON COMPUTER 16.07.2015 DRAFT PLACED BEFORE AUTHOR 16.07.2015 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 23.07.2015 KEPT FOR PRONOUNCEMENT ON 16.07.2015 FILE SENT TO THE BENCH CLERK 23.07.2015 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.