Sanjiv Dutta, New Delhi V. ITO, Ward-31(3), New Delhi

ITA 6394/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5464 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: MANU K GIRI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6394/DEL/2017 ASSESSMENT YEAR: 2011-12 SANJIV DUTTA, VS. ITO, WARD-31(3), DD-232, WESTERN MARG, NEW DELHI SAIDULAJAB M.B. ROAD, MEHRAULI, NEW DELHI 110 030 (PAN: AEOPD1198N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. MANU K. GIRI, ADV. REVENUE BY : MS. ASHIMA NEB, SR. DR ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED NIL OF THE LD. CIT(A)-11, NEW DELHI PERTAINING TO ASS ESSMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS:- 1.) THAT THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE DISALLOWANCE OF RS.34,58,139/- BEING 10% OF THE PURCHASES OUT OF TOTAL PURCHASES OF RS.3,45,81,398/- WITHOUT APPRECIATING THE CORRECT FACTS AND LAW OF THE INCOME TAX ACT, 1961. 2.) THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE PROPER BILLS, VOUCHERS WHILE DISALLOWING RS.3,04,197/- BEING 50% OF EXPENSES OFRS.6,08,395/-. 2 3.) THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE DONATION OF RS.1,000/- AND ARBITRARILY DISALLOWED THE SAME. 4.) THAT THE LEARNED CIT(A) AS WELL AS LD. A.O. HAS FURTHER FAILED TO FOLLOW THE PRINCIPLES OF NATURAL JUSTICE WHILE DECIDING THE APPEAL. 5.) THAT THE LEARNED CIT(A) AS WELL AS LD. A.O. HAS FAILED TO APPRECIATE THAT THE CASE OF THE ASSESSEE HAS NOT BEEN PROPERLY PROSECUTED BY ASSESSEE'S CA BEFORE BOTH THE AUTHORITIES WHICH HAS CULMINATED INTO THE DISMISSAL OF THE APPEAL IN LIMINE AS WELL AS ON MERITS. 6.) THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUND OF APPEAL AT THE TIME OF HEARING THE APPEAL. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AFTER HEARING BOTH THE PARTIES, I AM OF THE VIEW THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A). BUT DURING THE HEARING, SH. MANU K. GIRI, ADV./COUNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE AND ALSO NOT PASSED A SPEAKING ORDER. BUT NOW HE UNDERTAKES THAT HE WILL APPEAR BEFORE THE LD. CIT(A ) AND WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT AND WILL COOPERATE IN THE APPELLATE PROCEEDINGS FOR THE SPEEDY DISPOSAL OF THE APPEAL, IF THIS BENCH SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 3.1 ON THE CONTRARY, LD. DR STRONGLY OBJECTED THE REQUEST OF THE ASSESSEES COUNSEL AND STATED THAT ASSESSEE REMAIN ED NON- COOPERATIVE BEFORE THE LD. CIT(A), AND THEREFORE, IS NOT ENTITLED FOR 3 ANY LENIENCY. HENCE, SHE REQUESTED THAT THE APPE AL OF THE ASSESSEE MAY BE DISMISSED. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDER OF THE LD. CIT(A). THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A). BUT I FIND COGENCY IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT LD. CIT(A) HAS NOT PASSED THE SPEAKING ORDER. THEREFOR E, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO TH E FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQ UATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE BY PASSING A SPEAKING ORDER. THE ASSESSEE THROUGH HIS COUNSEL SH. MANU K. GIRI, ADV. IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 17.07.2018 AT 10.00 AM AND WILL REMAIN COOPERATIVE IN THE PROCEEDINGS AND NO T TO TAKE ANY UNNECESSARY ADJOURNMENT. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 02-05-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 02-05-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. 4