Prabha Jain, Delhi V. ITO ward-47(2), New Delhi

ITA 6536/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3287 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Principle of natural justice; Corroborative evidences; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO. 6536/DEL/2019 (ASSESSMENT YEAR: 2011-12) MRS. PRABHA JAIN 2431/4, 2 ND FLOOR, CHHIPI WARA NEAR JAMA MAJID, CHAWRI BAZAR, DELHI. PAN NO. AFXPJ4219E VS. INCOME TAX OFFICER WARD 47(2) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI SANJIV MAHAJAN, SR. DR DATE OF HEARING 18.10.2021 DATE OF PRONOUNCEMENT 21.10.2021 HEARING CONDUCTED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, WHEREIN THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 28.05.2019 OF CIT(APPEALS)-16, NEW DELHI PERTAINING TO 2011-12 AS SESSMENT YEAR ON VARIOUS GROUNDS. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. THE APPEAL WAS PASSED OVER. IN THE SECO ND ROUND ALSO THE POSITION REMAINED THE SAME AS THE ASSESSEE REMAINED UNREPRESENTED. A PERUSAL OF THE RECORD FURTHER SHOWS THAT ON EACH OF THE DAYS THE APPEAL OF THE ASSESSEE WAS FIXED THE ASSESSEE WAS NOT PRES ENT BEFORE THE ITAT. HOWEVER, ON A PERUSAL OF THE RECORD, IT WAS SEEN TH AT THE APPEAL COULD BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RE CORD IN THE CONTEXT OF THE PROCEDURAL DEFICIENCIES ADDRESSED IN GROUND NOS . 1 AND 2 RAISED BY THE ASSESSEE IN THE PRESENT PROCEEDINGS. THESE REA D AS UNDER: - 1. FOR THAT THE ASSESSING OFFICER HAS PASSED THE ORDER OF ASSESSMENT DATED 18 TH DEC. 2018 & CIT(APPEAL)-16 HAS ALSO PARTLY CONFIRM ED THE SAID ORDER BY HIS ORDER NO. 10307/18-19 DATED 28.05.2019 IN VIOLA TION OF PRINCIPLE OF ITA NO.6536/DEL/2019 PAGE 2 OF 4 NATURAL JUSTICE AND FAIR PLAY WHICH HAS CAUSED GREA T HARMS AND PREJUDICE TO THE APPELLANT. 2. FOR THAT, THE CIT APPEAL HAS PARTLY CONFIRMED THE A DDITION OF RS. 397320/- ON ACCOUNT OF NON-SUBMISSION OF CONFIRMATION OF OLD DEBTORS WHEREAS THE ASSESSEE HAS SUBMITTED CONFIRMATION TO THE CIT(A). THE APPELLANT HAS NOT BEEN GIVEN PROPER OR ADEQUATE OPPORTUNITY BY THE CI T(A) TO MAKE HER REPRESENTATION AGAINST THE ABOVE SAID CONFIRMATIONS WHICH WERE REJECTED BY THE CIT(A). THE ASSESSEES REPRESENTATIVE HAS FILE D CONFIRMATION ON 28.05.2019, AND ON THE SAME DAY, CIT(A) HAS PASSED ITS ORDER WITHOUT ASKING ANY FURTHER QUESTION ON SAID CONFIRMATIONS A ND WITHOUT GIVING ADEQUATE OPPORTUNITY TO SUBMITTED THE COPY OF ITR FO R THE ABOVE SAID CONFIRMATIONS. THEREFORE, THE SAID ADDITION IS EXC ESSIVE, ILLEGAL, ARBITRARY, UNJUST, AND LIABLE TO BE QUASHED. 3. LD. SR. DR MR. SANJIV MAHAJAN WAS HEARD WHO RELI ED ON THE ORDER. 4. I HAVE HEARD HIS SUBMISSIONS AND SEEN THE RECORD . IT IS SEEN ON A READING OF THE IMPUGNED ORDER THAT THE AD DITIONS MADE BY THE ASSESSING OFFICER ASSAILED BY THE ASSES SEE BY WAY OF FILING THE APPEAL BEFORE THE CIT(APPEALS) WE RE PARTLY SUSTAINED WITHOUT GIVING EFFECTIVE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE RECORD SHOWS THAT THE APPEAL AS PER THE IMPUGNED ORDER WAS INSTITUTED ON 19.01.2019 AND WAS FIXED FOR HEARING ON 11.04.2019 FOR THE FIRST TIME. THER EAFTER, FEW ADJOURNMENTS WERE GIVEN AND THE APPEAL CAME UP FOR HEARING ON 28.05.2019 ON WHICH DATE WRITTEN SUBMISSIONS ON BEHALF OF THE ASSESSEE WERE FILED. ON THE SAID DATE THE A SSESSEE WAS REPRESENTED BY HER CHARTERED ACCOUNTANT. IT IS SEE N THAT THE ORDER WAS PASSED ON THE VERY SAME DAY CONSIDERING T HE WRITTEN SUBMISSIONS ADVANCED WHEREBY PART RELIEF WA S NO DOUBT GRANTED BUT PART ADDITION STOOD CONFIRMED. I T IS SEEN THAT THE LD. CIT(A) ACCEPTED FRESH EVIDENCES FILED AND FOUND IT TO BE SUFFICIENT FOR DELETING ADDITIONS QUA 12 TRAD E DEBTORS BUT INSUFFICIENT QUA REMAINING 8 TRADE DEBTORS. TH E GRIEVANCE POSED IN THE GROUNDS IS THAT DEFICIENCIES IN EVIDEN CE AS NOTICED BY THE LD. COMMISSIONER WAS NEVER COMMUNICA TED AND OPPORTUNITY TO MAKE GOOD THE DEFICIENCIES ETC. ITA NO.6536/DEL/2019 PAGE 3 OF 4 CONSEQUENTLY HAS NOT BEEN PROVIDED. IT IS A MATTER OF FACT NOT DISPUTED BY THE LD. SR. DR THAT THE CONCERNED LADY DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS REMAINED BUSY IN ATTENDING TO HER HUSBANDS CHRONICAL ILLNESS (CANCE R ETC.). IT IS SEEN THAT PART OF THE ADDITIONS WERE DELETED CON SIDERING THE CONFIRMATIONS AND CORROBORATIVE EVIDENCE IN THE FOR M OF CONFIRMATIONS AND THE ITRS QUA 12 TRADE DEBTORS AS FRESH EVIDENCES. HOWEVER, FOR THE REMAINING 8 ALLEGED TRA DE DEBTORS ADDITIONS MADE BY THE AO WERE CONFIRMED FOR WANT OF PROPER DOCUMENTARY EVIDENCE. THE CONFIRMATIONS FILED ON P LAIN PAPER, COPIES EXTRACTED AT PAGE 13 OF THE IMPUGNED ORDER WERE CONSIDERED TO BE NOT SUFFICIENT EVIDENCE. 5. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEF ORE THE ITAT. THE LD. SR. DR SUBMITS THAT EVIDENCES AS MAD E AVAILABLE HAVE BEEN CONSIDERED. HOWEVER, THE SPECI FIC GRIEVANCE POSED NAMELY THAT THE DEFICIENCIES NOTICE D FOR CONFIRMING PART OF THE ADDITION WERE NEVER CONFRONT ED TO THE ASSESSEE AND LACK OF PROPER OPPORTUNITY PLEADED IN THE GROUNDS WAS NOT DISPUTED. ACCORDINGLY, AFTER HEARI NG THE LD. SR. DR AND PERUSING THE RECORD IT IS DEEMED APPROPR IATE TO SET ASIDE THE IMPUGNED ORDER TO THE EXTENT OF THE A DDITIONS CONFIRMED BACK TO THE FILE OF THE LD. CIT(A) WITH T HE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFT ER HEARING THE ASSESSEE. THE ASSESSEE IN ITS OWN INTEREST IS DIRECTED TO MAKE AVAILABLE ALL NECESSARY SUPPORTING EVIDENCES A ND PARTICIPATE IN THE PROCEEDINGS FULLY AND FAIRLY. I T IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED TO THE ASSES SEE IN GOOD FAITH SHOULD NOT BE ABUSED. 6. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT T HE TIME OF HEARING ITSELF. ITA NO.6536/DEL/2019 PAGE 4 OF 4 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2021 SD/- (DIVA SIN GH) JUDICIAL MEMBER *KAVITA ARORA, SPS COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT CONCERNED BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCHES: DELHI.