Rajkamal Associates Ltd., New Delhi V. ITO, New Delhi

ITA 704/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86777 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 11-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 05-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Principle of natural justice

Judgement Text

ITA NO.704/DEL/2013 ASSTT.YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES FNEW DELHI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 704/DEL/2013 ASSTT.YEAR: 2004-05 RAJKAMAL ASSOCIATES LTD., VS INCOM E TAX OFFICER, 23, PASCHIMI MARG, WARD-15(2), VASANT VIHAR, NEW DELHI. NEW DELHI. (PAN: AAACR1521J) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI M.P. RASTOGI, CA RESPONDENT BY: SHRI VIKRAM SAHAY, SR. DR O R D E R PER C.M. GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE CIT(A)- XVIII, NEW DELHI DATED 8.11.2012 IN APPEAL NO.410/11-12 FOR AY 2004-05. 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. AT THE OUTSET, WE TAKE UP GROUND NO. 1 AND 2 OF THE ASSESSEE WHICH READ AS UNDER:- 1. ORDER PASSED BY THE LD. CIT(A) U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 IS ARBITRARY AND BAD IN LAW AN D ON FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.704/DEL/2013 ASSTT.YEAR: 2004-05 2 2. THE LD. CIT(A)-XVIII, NEW DELHI DID NOT AFFORD REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESENT ITS CASE WHICH IS AGAINST THE LAW OF NATURAL JUSTICE. 3. APROPOS AFOREMENTIONED GROUNDS, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE CIT(A) DID NOT AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT ASSESSEE TO REPRESENT ITS CASE DURING FIRST APPELLATE PROCEEDINGS WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. LD. COUNSEL HAS FURTHER DRAWN OUR ATTENTION TOWARDS OPERATIVE PARA 3 AT PAGE 2 OF THE IMPUGNED ORDER AND SUBMITTED THAT ON 25.10.2012, THE ASSESSEE FILED AN APPLICATION REQUESTING FOR ADJOURNMENT TO THE FIRST WEEK OF NOVEMBER, 2012 AND THE CASE WAS ADJOURNED TO 6.11.2012 BUT ON THE SAID DATE, THE ASSESSEE AND IT S REPRESENTATIVE COULD NOT ATTEND THE PROCEEDINGS DUE TO SOME UNAVOIDABLE CIRC UMSTANCES. LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE AND ITS REPRESE NTATIVE REMAINED ABSENT DUE TO REASONS BEYOND CONTROL UNDER A BONA FIDE BELIEF THA T A REASONABLE OPPORTUNITY OF HEARING WOULD BE AFFORDED TO THE ASSESSEE. LD. COU NSEL VEHEMENTLY CONTENDED THAT WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS AND CONTENTIONS IF, FOR THE SAKE OF ARGUMENT, IT MAY BE PRESUMED THAT THE ASSESSEE A ND ITS REPRESENTATIVE REMAINED ABSENT DURING THE FIRST APPELLATE PROCEEDI NG, THEN ALSO THE FIRST APPELLATE AUTHORITY I.E. CIT(A) IS DUTY BOUND TO AD JUDICATE AND ADDRESS ALL THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY BUT THE CIT(A) HAS DISMISSED THE APPEAL SIMPLY OBSERVIN G THAT IT IS APPARENT THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL W HICH IS NOT A LEGAL AND JUSTIFIED APPROACH OF THE FIRST APPELLATE AUTHORIT Y. ITA NO.704/DEL/2013 ASSTT.YEAR: 2004-05 3 4. REPLYING TO THE ABOVE, LD. DR SUBMITTED THAT IF ASSESSEE IS NEITHER APPEARING NOR FILING ANY APPLICATION FOR ADJOURNMEN T ON FIXED DATE OF HEARING I.E. 6.11.2012, THEN THE FIRST APPELLATE AUTHORITY HAS NO ALTERNATIVE TO DISMISS THE APPEAL IN ABSENCE OF PROPER PERSUASION. HOWEVER, L D. DR FAIRLY ACCEPTED THAT IF IT IS FOUND JUST AND PROPER, THEN THE CASE MAY BE R ESTORED TO THE FILE OF CIT(A) FOR A FRESH ADJUDICATION AND DEPARTMENT HAS NO SERI OUS OBJECTION IN THIS REGARD. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS OF BOTH THE SIDES AND CAREFUL PERUSAL OF RELEVANT MATERIAL PLACED ON RECO RD, FROM BARE READING OF THE OPERATIVE PARA 3 AT PAGE 2 OF THE IMPUGNED ORDER, W E OBSERVE THAT THE CIT(A) HAS DISMISSED THE APPEAL WITH THIS CONCLUSION THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL WITHOUT EXPRESSING AND ADJUD ICATING ANY VIEWS ON THE GROUNDS RAISED BY THE ASSESSEE IN ITS FIRST APPEAL. THIS IS NOT A PROPER AND JUSTIFIED APPROACH AS IF ASSESSEE REMAINS ABSENT DE SPITE SERVICE OF NOTICE, THEN THE CIT(A) MAY PROCEED TO DECIDE THE APPEAL ON MERI TS ADDRESSING ALL THE GROUNDS RAISED BY THE ASSESSEE ON THE BASIS OF MAT ERIAL AVAILABLE ON APPEAL RECORD BUT THE APPEAL CANNOT BE DISMISSED SUMMARILY BY PASSING A CRYPTIC ORDER. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E CIT(A) OUGHT TO HAVE DECIDED AND ADJUDICATED ALL THE ISSUES AND GROUNDS RAISED BY THE ASSESSEE AND, THEREFORE, THE IMPUGNED ORDER OF THE CIT(A) IS NOT SUSTAINABLE AND WE SET ASIDE THE SAME BY RESTORING THE FIRST APPEAL TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION ON MERITS AFTER AFFORDING DUE OPPORTUN ITY OF HEARING FOR THE ITA NO.704/DEL/2013 ASSTT.YEAR: 2004-05 4 ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSEE SHALL COOPERATE DURING FRESH PROCEEDINGS BEFORE THE CIT(A). 6. IN THE RESULT, GROUND NO. 1 AND 2 OF THE ASSESSE E ARE ALLOWED IN THE MANNER AS INDICATED ABOVE. SINCE WE HAVE RESTORED FIRST A PPEAL TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION, THEREFORE, OTHER GROUNDS OF THE ASSESSEE DO NOT REQUIRE ADJUDICATION ON MERITS AND WE DISMISS THE SAME AS B EING INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.2015. SD/- SD/- (R.S. SYAL) (CHAND RAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 19TH FEBRUARY, 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR