Sh. Gopal Varshney, New Delhi V. ITO, Bulandshahr

ITA 6764/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7026 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 07-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: R B ARORA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-6764/DEL/2014 (ASSESSMENT YEAR-2010-11) GOPAL VARSHNEY, L/H OF SHELENDRA MOHAN, C/O- R.B.ARORA & CO., CA DSM-127, DLF TOWERS, MOTI NAGAR, NEW DELHI-110015. PAN-AIXPM3414B ( APPELLANT) VS ITO, WARD-4, BULANDSHAHR. (RESPONDENT) ASSESSEE BY SH.R.B.ARORA, CA REVENUE BY SH. F.R.MEENA, SR.DR DATE OF HEARING 10 . 11 .2016 DATE OF PRONOUNCEMENT 12 . 0 1.201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 16.10.2014 OF CIT(A), MEERUT PERTAINING TO 201011 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER, AT THE TIME OF HEARING THE PARTI ES WERE HEARD ONLY IN RESPECT OF GROUND NO. 2, THE SAME READS AS UNDER:- 2. THAT LD.CIT(A) HAD ERRED, BOTH IN LAW AS WELL A S IN FACTS OF THE CASE IN HOLDING THAT SINCE SUFFICIENT OPPORTUNITY OF BEING HEARD HAVE BEEN GIVEN TO THE APPELLANT, NO FURTHER ADJOURNMENT CAN BE GRANTED. THEREFORE, THE APPEAL IS DISPOSED OFF ON THE BASIS OF MATERIAL ON RECORD. IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING THE ADDITIONS. THE SAME ARE HEREBY CONFIRMED GROUNDS OF APPEAL ARE DISMISSED. 2. ADDRESSING THE REASONS FOR NON-APPEARANCE BEFORE THE CIT(A) ON 03.09.2014 AND 16.10.2014 THE TWO DATES ON WHICH THE HEARING WAS S TATED TO HAVE BEEN FIXED, IT WAS SUBMITTED BY THE LD. AR THAT HE IS INSTRUCTED THAT THE COUNSE L APPEARING ON BEHALF OF THE ASSESSEE WAS SUFFERING FROM TYPHOID AS RESULT OF WHICH ON THESE TWO DATES, THE ASSESSEE COULD NOT BE REPRESENTED. IT WAS SUBMITTED THAT FOR THIS SPECIF IC REASON, ADJOURNMENTS HAD BEEN SOUGHT. THE CONCLUSION OF THE CIT(A) THAT MORE THAN SUFFICI ENT OPPORTUNITY IN THE CIRCUMSTANCES, HAS BEEN GIVEN, IT WAS SUBMITTED IS AN INCORRECT CONCLU SION IN LAW AND IT WAS HIS PRAYER THAT THE OPPORTUNITY OF BEING HEARD, MAY BE GRANTED TO THE A SSESSEE FOR WHICH PURPOSES, THE IMPUGNED ORDER MAY BE SET-ASIDE. PAGE 2 OF 2 ITA NO.6764/DEL/2014 GOPAL VARSHNEY VS ITO 2.1. CONSIDERING THE FACTS AND THE ARGUMENTS ADVANC ED THE SAID PRAYER OF THE LD. AR WAS NOT OBJECTED TO BY THE LD. SR.DR 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERE D THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH. I FIND ON CONSIDERING THE IMPUGNED ORDE R, IT CANNOT BE SAID TO BE AN ORDER IN ACCORDANCE WITH LAW AS THE MANDATORY STATUTORY REQU IREMENTS OF SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 HAS NOT BEEN FULFILLED. THE STATUTE REQUIRES THAT THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHAL L BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REA SON FOR THE DECISION. THE SAID REQUIREMENT IS FOUND TO BE NOT FULFILLED. EVEN OTHERWISE CONS IDERING THE ORAL PRAYER OF THE ASSESSEE IN THE CIRCUMSTANCES WHERE TWO OPPORTUNITIES HAD BEEN SOUG HT ON THE GROUNDS OF THE COUNSELS MEDICAL REASON IT CANNOT BE SAID THAT MORE THAN SUF FICIENT OPPORTUNITY HAD BEEN GRANTED TO THE ASSESSEE. ACCORDINGLY, IN VIEW OF THESE PATENT AND OBVIOUS SHORTCOMINGS, THE IMPUGNED ORDER IS SET-ASIDE AND THE ISSUES ARE RESTORED BACK TO TH E FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 12 TH OF JANUARY, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI