Iliyas, Ghaziabad V. ITO, ward- 1(3), Ghaziabad

ITA 6512/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5966 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: VIVEK AGGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6512/DEL/2018 ASSESSMENT YEAR: 2010-11 ILIYAS VS. ITO, WARD 1(3), C/O VIVEK AGGARWAL, ADV. GHAZIABAD 1324, MAIN ROAD, ROOM NO. 206, 2 ND FLOOR, SECTOR-28, FARIDABAD ITO, CGO COMPLEX-1 HARYANA 121008 HAPUR CHUNGI, GHAZIABAD (PAN: ABEPI5668K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VIVEK AGGARWAL, AD V. DEPARTMENT BY : SH. S.L. ANURAGI, SR. DR. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31.7.2018 OF THE LD. CIT(A), GHAZIABAD RELATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT THE AO HAS ERRED IN ASSUMING JURISDICTION U/S. 147/148. 2. THAT THE ITO HAS ERRED IN NOT APPLYING PROVISIONS O F SECTION 44AF OF THE INCOME TAX ACT, 1961. 3. THAT THE ITO HAS ERRED IN MAKING ADDITION ON PRESUMPTION AND ASSUMPTION BASIS WITHOUT ANY CORROBORATIVE EVIDENCE. 2 4. THAT THE AO/CIT(A) HAS ERRED IN NOT SERVING THE NOTIC E TO THE APPELLANT. 5. THAT THE AO HAS ERRED IN PASSING NON-SPEAKING BIASE D AND VAGUE ORDERS GIVING NO BREAKUP OF DEMAND. 6. THAT THE AO HAS ERRED IN MAKING ADDITION WITHOUT CONSIDERING THE ITR FILED BY THE ASSESSEE AS THE SAME WAS FILED WITH PAN ABEPI5668K AND IN SAME WARD 1(3), GHAZIABAD. 7. THAT THE AO HAS ERRED IN INVOKING PROVISIONS OF SEC TION 69. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. LD. COUNSEL OF THE ASSESSEE STATED THAT THE LD. CIT( A) HAS PASSED THE ORDER AGAINST THE PRINCIPLES OF NATURAL JUS TICE BY WAY OF EXPARTE ORDER IN NOT PROVIDING SUFFICIENT OPPORTUNITIE S TO THE ASSESSEE AND NOT DECIDED THE APPEAL ON MERITS. HENCE , HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AND PASS A SPEAKING ORDER THEREON. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. IT WAS THE CONTENTION OF THE ASSESSEES COUNSEL THAT LD. CI T(A) HAS PASSED THE EX-PARTE NON-SPEAKING ORDER AND DISMISSE D THE APPEAL BY NOT PROVIDING SUFFICIENT OPPORTUNITIES TO THE ASSE SSEE, WHICH IS 3 AGAINST THE PRINCIPLE OF NATURAL JUSTICE. I FURTHER FIND THAT LD. CIT(A), HAS ONLY UPHELD THE ORDER OF THE AO AND PASSED THE EXPARTE ORDER, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THERE FORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE F ILE OF THE LD. CIT(A) TO DECIDE THE ISSUES IN DISPUTE AFRESH, IN ACCORDAN CE WITH LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE PARTIES AND PASS A SPEAKING ORDER. HOWEVER, THE ASSESSEE THROUGH HIS COUNSEL I S DIRECTED TO COOPERATE WITH THE LD. CIT(A) IN THE PROCEEDINGS AN D APPEAR BEFORE HIM ON 25.02.2019 AT 10.00 AM AND PRODUCE ALL THE DOCUMENTS BEFORE HIM TO SUBSTANTIATE ITS CLAIM AND NOT TO TAKE ANY UNNE CESSARY ADJOURNMENT. SINCE I HAVE FIXED THE DATE OF HEARING BEFORE THE L D. CIT(A), AS AFORESAID, HENCE, THERE IS NO NEED TO ISSUE THE SEPARATE NOTIC E FOR HEARING TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 22/01/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:22/01/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR