Net Agri Company Pvt. Ltd., New Delhi V. ITO, Ward- 18(1), New Delhi

ITA 6988/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3153 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 22-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R S SENAPATI
• Assessee Lawyers: NARESH JAIN MS SMRITY SAHANY
• Keywords: Application of stay; Additional evidence
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6988/DEL/2017 AY: 2012-13 STAY NO. 32/DEL/2018 (IN ITA NO. 6988/DEL/2017) AY: 2012-13 NET AGRI COMPANY PVT. LTD., LMJ HOUSE 9, HANUMAN ROAD, NEW DELHI. (PAN: AADCN5792Q) VS ITO, WARD 18(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARESH JAIN, ADVOCATE MS SMRITY SAHANY, CA RESPONDENT BY : SHRI R.S. SENAPATI, SR. DR DATE OF HEARING: 15.02.2018 DATE OF PRONOUNCEMENT: 27.02.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER DATED 12.09.2017 PASSED BY THE LD. CIT (A)-6, DELHI FOR ASSESSMENT YEAR 2012-13. 2. THE LD. AR SUBMITTED THAT IN THIS CASE, THE ASSE SSMENT ORDER WAS PASSED ON 27.03.2015 U/S 144 OF THE INCOM E TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') AS THE NOTICES ISSUED U/S 142(1) BY THE ASSESSING OFFICER WERE NOT SERVED ON THE ITA NO. 6988/DEL/2017 & STAY NO. 32/DEL/2018 ASSESSMENT YEAR 2012-13 2 ASSESSEE. IT WAS SUBMITTED THAT SINCE THE NOTICES WERE NOT SERVED, THERE WAS NO OPPORTUNITY WHICH COULD HAVE B EEN AVAILED BY THE ASSESSEE TO PRESENT ITS CASE BEFORE THE ASSE SSING OFFICER. IT WAS ALSO SUBMITTED THAT EVEN THE ASSESSMENT ORDE R WAS NOT SERVED ON THE ASSESSEE AND THE ASSESSEE CAME TO KNO W OF THE ASSESSMENT ORDER HAVING BEEN PASSED EX PARTE ON RECEIVING THE PENALTY NOTICE FROM THE ASSESSING OFFICER. HE REFE RRED TO PARA 1 OF ASSESSMENT ORDER AND SUBMITTED THAT IN THAT PARA GRAPH, THE ASSESSING OFFICER HAS MENTIONED THAT THE NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE BUT IT DOES NOT MENTION THAT THE SAID NOTICE WAS SERVED ON THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THIS GROUND WAS RAISED BEFORE THE LD. CIT (A) ALSO BUT THE LD. CIT (A) DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD SOUGHT TO FILE ADDI TIONAL EVIDENCES BEFORE THE LD. CIT (A) BUT THE SAME WAS A LSO REFUSED BY THE LD. CIT (A). THE LD. AR SUBMITTED THAT THE ASS ESSEE, IN THE INTEREST OF JUSTICE, SHOULD HAVE BEEN GRANTED A PRO PER OPPORTUNITY BEFORE ANY ADDITION WAS MADE. THE LD. A R SOUGHT A REMIT OF THE CASE TO THE ASSESSING OFFICER. 3. THE LD. SR. DR OPPOSED THE PLEA OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE HAD BEEN NEGLIGENT IN A PPEARING ITA NO. 6988/DEL/2017 & STAY NO. 32/DEL/2018 ASSESSMENT YEAR 2012-13 3 BEFORE THE ASSESSING OFFICER AND, THEREFORE, THE AS SESSEE DOES NOT DESERVE A FRESH OPPORTUNITY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE A SSESSEE IS CHALLENGING THE SERVICE OF NOTICE AND NONE OF THE L OWER AUTHORITIES HAVE RECORDED A FINDING THAT THE NOTICE WAS, IN FAC T, SERVED UPON THE ASSESSEE. THE ASSESSING OFFICER HAS ONLY MENTI ONED THAT THE STATUTORY NOTICE U/S 142(1) WAS ISSUED. FURTHER, T HE ASSESSEE HAD PRAYED BEFORE THE LD. CIT (A) TO ADMIT THE ADDI TIONAL EVIDENCE/S UNDER RULE 46A OF THE INCOME TAX RULES, 1962 IN RESPECT OF ADDITIONS MADE BY THE ASSESSING OFFICER. HOWEVER, THE LD. CIT (A) REJECTED THE PRAYER OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICES ISSU ED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, IT IS VERY MUCH EVIDENT THAT THE ADDITIONS HAVE BEEN MADE WITHOUT THE ASSES SEE HAVING BEEN GIVEN AN OPPORTUNITY TO REPLY TO THE INQUIRIES WHICH THE ASSESSING OFFICER MIGHT HAVE RAISED. THE LD. CIT ( A) HAS ALSO REFUSED TO ADMIT THE ADDITIONAL EVIDENCES WHICH COU LD HAVE SUPPORTED THE CAUSE OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, IT IS OUR CONSIDERED OPINION THAT THE ASSE SSEE SHOULD BE GIVEN ANOTHER OPPORTUNITY TO FURNISH PROPER EVIDENC ES AND ITA NO. 6988/DEL/2017 & STAY NO. 32/DEL/2018 ASSESSMENT YEAR 2012-13 4 DOCUMENTS IN RESPECT OF THE ADDITIONS PERTAINING TO THE ISSUES WHICH WERE THE SUBJECT MATTER OF THE ASSESSMENT ORD ER DATED 27.03.2015. ACCORDINGLY, WE DEEM IT FIT TO RESTORE THE FILE TO THE OFFICE OF THE LD. CIT (A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES WHICH THE ASSESSEE WISHES TO SUBMIT WITH RESPECT TO THE ADDITIONS WHICH WERE CHALLENGED BEFORE HIM IN I TS GROUNDS OF APPEAL. THE LD. CIT (A) IS DIRECTED TO ADJUDICATE THE APPEAL AFRESH AFTER GIVING PROPER OPPORTUNITY TO THE ASSES SEE TO PRESENT ITS CASE. THE LD. AR HAS GIVEN AN ASSURANCE AT THE BENCH THAT THE ASSESSEE WILL PURSUE THE MATTER BEFORE THE LOWE R AUTHORITIES WITH DUE DILIGENCE AND COOPERATION. ACCORDINGLY, W E DEEM IT FIT TO ALLOW THE ASSESSEES APPEAL FOR STATISTICAL PURPOSE S BY RESTORING THE SAME TO THE FILE OF THE LD. CIT (A). 5. AS FAR AS THE STAY CONNECTED WITH THIS APPEAL IS CONCERNED, SINCE WE HAVE ALREADY ALLOWED THE ASSESSEES APPEAL FOR STATISTICAL PURPOSES AND RESTORED THE SAME TO THE FILE OF THE L D. CIT (A), THE STAY PETITION OF THE ASSESSEE BECOMES IN FRUCTUOUS AND IS DISMISSED AS SUCH. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES WHILE THE STAY APPLICATION IS DISMISSED. ITA NO. 6988/DEL/2017 & STAY NO. 32/DEL/2018 ASSESSMENT YEAR 2012-13 5 ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH FEBRUARY, 2018. SD/- SD/- (N.K. SAINI) (SUDHANSHU SRIV ASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 27 TH FEBRUARY, 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR