Mr. S.P.S. Ahluwalia, Gurgaon V. ACIT, New Delhi

ITA 695/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1012 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 16-11-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 25-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GAJANAND MEENA
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : D NEW DELHI) BEFORE SHRI GEORGE MATHAN,JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NOS.692, 693,694, 695,696,697 & 698/DEL./200 9 (ASSESSMENT YEARS : 1998-99 & 99-2000, 2000-01,01- 02,02-03,03-04 & 04-05) MR. S.P.S. AHLUWALIA, VS. ACIT, CEN. CIR. 12, C/O MANOJ KUMAR MITTAL & CO., C.AS.. NEW DELHI. 305, DAKHA CHAMBER, 2068/38, NAI WALA, KAROL BAGH, NEW DELHI. (PAN/GIR NO.AAGPA5360H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANOJ KUMAR, CA. REVENUE BY : SHRI GAJANAND MEENA, CIT(DR) ORDER PER BENCH ALL THESE APPEALS ARE FILED BY THE ASSESSEE WHICH A RE DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A)-I, NEW DELHI ALL DATED 10.12.2 008 FOR ASSESSMENT YEARS1998-99 TO 2004-05. FOR THE SAKE OF CONVENIENCE, ALL THESE AP PEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. GROUND NO.1 OF THE APPEAL RAISED BY THE ASSESSEE IN ALL THE YEARS IS IDENTICAL, WHICH READS AS UNDER: THAT LOOKING INTO THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE LD.CIT(A) HAS ERRED IN DISMISSING THE APPEAL FILED BAY THE APPELL ANT HOLDING IT AS INVALID ON UNTENABLE AND ILLEGAL AND ARBITRARY GROUNDS. 2. IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE TH AT IN ALL THESE YEARS, THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE AS INFRUCTUOUS WITHOUT DECIDING THE ISSUE ON MERIT AND HENCE THIS ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT CORRECT AND IN ALL T HE YEARS, THE ENTIRE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE COMMISSIONER OF IN COME-TAX (APPEALS) FOR DECISION ON MERIT. LD.DR SUPPORTED THE ORDER OF THE COMMISSION ER OF INCOME-TAX (APPEALS). I.T.A. NO.692 TO 698/DEL./2009 (A.YS.: 1998-99 TO 2004-05) 2 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IT HAS BEEN NOTED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN ALL THESE Y EARS THAT THE ASSESSEE HAS FILED AN APPLICATION BEFORE SETTLEMENT COMMISSION. IT IS NO TED THAT ON THE APPOINTED DATE OF THE HEARING, THERE WAS NONE APPEARING ON BEHALF OF THE ASSESSEE BEFORE THE SETTLEMENT COMMISSION AND LD.DR OF THE REVENUE HAD SUBMITTED B EFORE THE SETTLEMENT COMMISSION THAT THE ASSESSEE HAS NOT MADE ANY PAYME NT OF ADDITIONAL TAX AND INTEREST HEREON IN RESPECT OF SETTLEMENT APPLICATIONS FILED. IT IS HELD BY THE SETTLEMENT COMMISSION THAT SINCE PAYMENT OF TAXES IS A MANDATO RY REQUIREMENT UNDER THE PROVISIONS OF SECTION 245D(2A), THE APPLICATIONS OF THE ASSESS EE WERE TREATED AS INVALID AND IT WAS DIRECTED BY THE SETTLEMENT COMMISSION THAT THE PROC EEDINGS BEFORE THE SETTLEMENT COMMISSION SHALL ABATE FORM THE LAST DATE OF THE MO NTH OF SEPTEMBER, 2007. THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS REPRODUCED THE ORDER OF THE SETTLEMENT COMMISSION IN THIS REGARD AND THEREAFTER IT WAS HEL D BY HIM THAT SINCE THE ASSESSEE HAS NOT DEPOSITED THE TAX BEFORE THE SETTLEMENT COMMISS ION, PLEAS OF SEEKING REMEDY CANNOT BE AT THE SWEET WILL OF THE ASSESSEE AND BY MAKING THESE OBSERVATIONS, THESE APPEALS OF THE ASSESSEE WERE DISMISSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) AS INFRUCTUOUS WITHOUT DECIDING THE ISSUES INVOLVED ON MERIT. 4. WE FIND THAT AS PER SUB-SECTION (2) OF SECTION 2 45HA, WHERE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION ABATES, THE ASSESSING OFF ICER OR AS THE CASE MAY BE, ANY OTHER INCOME TAX AUTHORITY BEFORE WHOM THE PROCEEDING AT THE TIME OF MAKING THE APPLICATION WAS PENDING, SHALL DISPOSE OF THE CASE IN ACCORDANC E WITH THE PROVISIONS OF THIS ACT AS IF NO APPLICATION U/S 245C HAS BEEN MADE. AS PER SUB- SECTION (3) OF SECTION 245HA, THE ASSESSING OFFICER OR SUCH OTHER INCOME-TAX AUTHORIT Y SHALL BE ENTITLED TO USE THE MATERIAL AND OTHER INFORMATION PRODUCED BY THE ASSESSEE BEFO RE THE SETTLEMENT COMMISSION. IN THE PRESENT CASE, IT IS NOTED BY THE COMMISSIONER O F INCOME-TAX (APPEALS) THAT THE ASSESSEE HAS FILED THE APPLICATIONS BEFORE THE SETT LEMENT COMMISSION ON 8.8.2006 I.E. AFTER THE PASSING OF ASSESSMENT ORDER IN ALL THESE CASES AND AT A STAGE WHEN THE APPEALS OF THE ASSESSEE WERE PENDING BEFORE THE COMMISSIONER O F INCOME-TAX (APPEALS) BECAUSE WE FIND THAT ALL THESE APPEALS WERE FILED BY THE ASSES SEE BEFORE THE COMMISSIONER OF INCOME- TAX (APPEALS) ON 27.4.2006 AS NOTED BY THE COMMISSI ONER OF INCOME-TAX (APPEALS) ON I.T.A. NO.692 TO 698/DEL./2009 (A.YS.: 1998-99 TO 2004-05) 3 PAGE 1 OF HIS ORDER. HENCE, AFTER THE ABATEMENT OF THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION, THE COMMISSIONER OF INCOME-TAX (APPEALS ) WAS REQUIRED TO PASS ORDERS IN ALL THESE YEARS IN ACCORDANCE WITH THE PROVISIONS O F THIS ACT AS IF NO APPLICATION U/S 245C HAD BEEN MADE BY THE ASSESSEE BEFORE THE SETTLEMENT COMMISSION, BUT HE HAS NOT DONE THE SAME. HE HAS DISMISSED ALL THE APPEALS OF THE ASSESSEE AS INFRUCTUOUS WHICH IS NOT CORRECT AND HENCE WE SET ASIDE THE ORDERS OF THE CO MMISSIONER OF INCOME-TAX (APPEALS) FOR ALL THESE YEARS AND RESTORE THE ENTIRE MATTER B ACK TO HIS FILE FOR DECISION ON MERIT IN ACCORDANCE WITH LAW. THE COMMISSIONER OF INCOME-TA X (APPEALS) SHOULD PAS NECESSARY ORDER AS PER LAW AFTER PROCEEDINGS ADEQUATE OPPORTU NITY OF BEING HEARD TO BOTH THE SIDES. 5. IN VIEW OF OUR DECISION WITH REGARD TO GROUND NO .1 OF THE ASSESSEE IN ALL THE YEARS, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN ALL THE SE YEARS DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE BECAUSE IN ALL THE YEARS, THE ENTIRE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) FOR HIS DECISI ON ON MERIT. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S TAND ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING ON 16.11.2009. SD/- SD/- (GEORGE MATHAN) (A.K. GARODIA) JUDICIAL MEMBER. ACCOUNTANT MEMBER DATED, NOV. 16 2009. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-I, NEW DELI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. BY ORDER (ITAT, NEW DELHI).