Irshad Ahmed, Haridwar V. ITO, Haridwar

ITA 6813/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2995 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 11-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR CHOPRA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-6813 & 6811/DEL/ 2015 (ASSESSMENT YEAR-2010-11) IRSHAD AHMED, PROP. CHAMPION SCRAP TRADERS, C/O-VIKAS SHARMA, ADV., HARITAS BHAWAN, CHANDRACHARYA CHOWK, JWALAPUR, HARIDWAR-249407 PAN: AGLPA6120G (APPELLANT) VS ITO, WARD-1, 28-29, INDUSTRIAL AREA, HARIDWAR (RESPONDENT) A SSESSEE BY NONE REVENUE BY MR. MANOJ KUMAR CHOPRA, SR.DR ORDER PER DIVA SINGH, JM THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 06.07.2015 OF CIT(A) , DEHRADUN PERTAINING TO 2010-11 AY ON VARIOUS GROUNDS INCLUDING GROUND NO.1 & 2 WHICH READ AS UNDER:- 1. THAT THE APPELLATE ORDER AS HAS BEEN PASSED BY THE LD.CIT(APPEALS), DEHRADUN BASED ON THE IMPUGNED PEN ALTY ORDER PASSED BY THE LD.AO IS BAD IN LAW, UNREASONABLE, IL LEGAL, UNLAWFUL AND AGAINST THE FACTS. 2. THAT THE APPELLATE ORDER PASSED BY THE LD. CIT(APPE ALS) IN CONFIRMING THE EX-PARTE PENALTY ORDER PASSED BY THE LD.AO HAS FAILED TO CONSIDER THE BASIC FACTUAL CIRCUMSTANCES LEADING TO THIS CASE, THEREFORE, THE SAME IS HIGHLY ARBITRARY AND E XCESSIVE, AGAINST THE DOCTRINE OF NATURAL JUSTICE AND DESERVE D TO BE CANCELLED OR ANNULLED. 2. AT THE TIME OF HEARING, AN ADJOURNMENT WAS MOVED ON BEHALF OF THE ASSESSEE BY SH. VIKASH SHARMA, ADVOCATE PRAYING FOR TIME ON THE GROUND THAT DUE TO KUMBH MELA SNAAN HE WAS UNABLE TO APPEAR. HOWEVER, CONSIDERING DATE OF HEARING 11.02.2016 DATE OF PRONOUNCEMENT 03.03.2016 I.T.A .NO.-6813 & 6811/DEL/2015 PAGE 2 OF 3 THE MATERIAL AVAILABLE ON RECORD QUA THE GROUNDS RA ISED AFTER HEARING THE LD. SR. DR IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH T HE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS. THE RECORD S HOWS THAT THE IMPUGNED ORDER WAS PASSED EX-PARTE WHEREIN THE LD. COMMISSIO NER TAKES NOTE OF THE FACT THAT THE OPPORTUNITY PROVIDED ON TWO OCCASIONS WAS NOT AVAILED OF AND THE APPEAL WAS DISMISSED HOLDING THAT THE ASSESSEE WAS NOT SERIOUS IN PURSUING THE APPEAL. FOR READY-REFERENCE, PARA 3 OF THE IMPUGNED ORDER IS REPRODUCED HEREUNDER:- 3. IN THIS CASE THE LAST NOTICE HAS GONE UNATTENDE D ALONGWITH TWO PREVIOUS NOTICES AND THUS IT CAN BE SAFELY PRESUMED THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THIS MATTER WITH ANY DEGREE OF SERIOUSNESS. ACCORDINGLY, IT IS SEEN THAT THERE IS NO MATERIAL WHATSOEVER TO APPRECIATE ANY FACTOR CONSTITUTING R EASONABLE CAUSE TO EXPLAIN THE DEFAULT GIVING RISE TO THE IMPUGNED ORD ER OF PENALTY U/S 271(1)(B) OF THE ACT. THE PENALTY LEVIED IS ACCORD INGLY CONFIRMED. 3. ON A CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD IT IS SEEN THAT THE ORDER CANNOT BE SAID TO BE AN ORDER FULFILLING THE REQUIREMENTS OF SUB-SECTION (6) OF SECTION 250 WHICH MANDATES THAT THE ORDER PASSED BY THE COMMISSIONER (APPEALS) DISPOSING THE APPEAL SHALL NOT ONLY BE IN WRITING BUT SHALL ALSO STATE THE POINTS FOR DETERMINATION; THE DECISION THEREON AND THE REASONS FOR THE DECISION. THE SAID STATUTORY REQUIREMENT IN THE FA CTS OF THE PRESENT CASE IT IS FOUND IS NOT FULFILLED. IT IS FURTHER SEEN THAT TH E ORDER UNDER CHALLENGE WAS PASSED EX-PARTE. ON A READING OF THE CASE, IT IS N OT CLEAR AS TO HOW AND ON WHICH DATES THE OPPORTUNITIES WERE PROVIDED BY THE LD. COMMISSIONER. FOR WANT OF REFERENCE TO THESE MATERIAL FACTS IT CANNOT BE DECIDED WHETHER AN EFFECTIVE OPPORTUNITY WAS PROVIDED TO THE ASSESSEE OR NOT. ACCORDINGLY IN VIEW OF THE ABOVE IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE APPEALS OF THE ASSESSEE ARE SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE D IRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF I.T.A .NO.-6813 & 6811/DEL/2015 PAGE 3 OF 3 BEING HEARD. IT IS SEEN FROM THE RECORD THAT EVEN BEFORE THE AO THE ASSESSEE WAS NOT REPRESENTED ACCORDINGLY THE OPPORTUNITY TO FILE FRESH EVIDENCES IS PROVIDED TO THE ASSESSEE. THE LD.CIT(A) CONSIDERING THE SAME SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. IT MAY NOT BE OUT OF PLACE TO MAKE IT CLEAR THAT IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAITH TO T HE ASSESSEE IS NOT ABUSED. AS FAILING WHICH THE LD.CIT(A) SHALL BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD OF MARCH, 2016. SD/- (DIVA SINGH) JU DICIAL MEMBER DATED: 03/03/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI