Salman , Hapur V. ITO, Ward- 3(5), Hapur

ITA 6609/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8491 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 16-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. S . SAINI, ACCOUNTANT MEMBER ITA NO. 6609 /DEL/2018 : ASSTT. YEAR : 2013 - 14 SALMAN, C/O VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT, UTTAR PRADESH VS INCOME TAX OFFICER, WARD - 3 (5), HAPUR UTTAR PRADESH (APPELLANT) (RESPONDENT) PAN NO. DVXPS5131K ASSESSEE BY : SH. VINOD KUMAR GOEL, CA REVENUE BY : SH. S. L. ANURAGI , SR. DR DATE OF HEAR ING: 0 4 . 04 .201 9 DATE OF PRONOUNCEMENT: 05 .04 .201 9 ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), GHAZIABAD DATED 31.08.2018 . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT LD. C.I .T (A) GHAZIABAD IGNORE THE FACT THAT THE ORDER U/S 144/147 FOR THE A.Y 2013 - 14 RECEIVE THE ASSESSEE 07/06/2017 AS ORIGINAL ORDER WAS RECEIVED BY THE ASS ESSEE ON REQUEST OF THE ASSESSEE ON 07/06/2017. THE ASSESSEE EXPLAINED THIS FACT TO THE A.O ON 21/08/2018 ALONG WITH APPLICA TION DATED 07/06/2017. THEREFORE C.I .T (A) IGNORE THE FACT THAT THE APPEAL FILED BY THE ASSESSEE WITHIN TIME. 2. THAT DUE THE ERROR ON THE NAME OF TH E FATHER ALL NOTICE U/S 147, 142 (1), 144 ARE RETURNED BACK TO THE A.O. EV EN ASSESSMENT ORDER 23 - 11 - 2016 WAS ALSO RETURNED BACK TO THE A.O. HENCE ENTIRE PROCEEDING OF ASSESSMENT U/S 144/147, WITHOUT ASSESSING THE NOTICE IS BAD IN LAW AND AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 3. THAT A.O IS IN ERROR TO ASSESS THE INCOME U/S 144/147 AT RS. 49,96,803/ - WITHOUT GOING THROUGH WITHDRAWAL AN D NATURE OF THE BUSINESS AND C.I .T (A) WITHOUT MERIT OF THE ITA NO . 6609 /DEL /201 8 SALMAN 2 CASE. HENCE, BOTH THE AUTHORITY PASSED THE ORDER AGAINST PRINCIPAL OF NATURAL JUSTICE. 4. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELETE ANY GROUND DURING APPEAL PROCEEDING. 3. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ON THE GROUND THAT THE REASONS GIVEN FOR FILING THE APPEAL BELATED BY MORE THAN FIVE MONTHS WERE NOT ACCEPTED BY HIM ON THE GROUND THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE IN SUPPORT OF HIS CONTENTION OF NOT HAVING RECEIVED ORDER OF THE ASSESSING OFFICER PASSED U/S 144/147 OF THE ACT. 4. HE SUBMITTED THAT SI NCE THE ASSESSMENT ORDER WAS NOT RECEIVED, THEREFORE, THE ASSESSEE REQUESTED THE ASSESSING OFFICER FOR PROVIDING CERTIFIED COPY AND AFTER RECEIVING THE SAME, THE ASSESSEE FILED THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS WITHIN THE TIME PRESCRIBED UNDER THE ACT. THEREFORE, THE DISMISSAL OF THE APPEAL OF THE ASSESSEE BY THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED. 5. ON THE OTHER HAND, THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIALS ON RECORD, I FIND THAT THE ASSESSEE CLAIMED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) THAT COPY OF ASSESSMENT ORDER PASSED U/S 144/147 OF THE ACT WAS NOT RECEIVED B Y HIM AND THE COMMISSIONER OF INCOME TAX (APPEALS) H AS NOT ACCEPTED THE SAME IN ABSENCE OF ANY EVIDENCE TO SUPPORT THE CONTENTION OF THE ASSESSEE. I FIND THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT STATED IN HIS ORDER WHAT EVIDENCE THE ITA NO . 6609 /DEL /201 8 SALMAN 3 ASSESSEE S HOULD HAVE FILED BEFORE HIM FOR THE CONTENTION OF NOT NON - RECEIPT OF ORDER OF THE ASSESSING OFFICER. THE ASSESSEE AFTER OBTAINING CERTIFIED COPY OF THE ORDER FROM THE ASSESSING OFFICER HAS FILED APPEAL BEFORE HIM. HENCE, IN THIS ABOVE CIRCUMSTANCES, THE CO MMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. I, THEREFORE, SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO THE FILE OF THE CIT(A) TO ADJUDICATE THE APPEAL OF TH E ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRO N OUNCED IN THE OPEN COURT ON 05 /0 4 /2019). SD/ - (N. S. SAINI) ACCOUNTANT MEMBER DATED: 05 /0 4 /2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR