Amita Baig, New Delhi V. ACIT, Circle- 32(1), New Delhi

ITA 7207/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2913 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 13-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI H.S.SIDHU, JUDICIAL MEMBER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 7207/DEL/2018 (ASSESSMENT YEAR: 2014-15) AMITA BAIG, R-8A, HAUZ KHAS, NEW DELHI-110016. PAN-AAEPB7555K VS ACIT, CIRCLE-32(1), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY S MT. RANO JAIN, ADV. RESPONDENT BY SHRI ANIL KUMAR SHARMA, SR.DR ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 11.09.2018 PASSED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-11, NEW DELHI [IN SHORT LD.CIT(A)] P ERTAINING TO 2014-15 ASSESSMENT YEAR. THE ASSESSEE HAS RAISED FO LLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LEARNED CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N PASSING THE ORDER WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. (II) THAT THE NON-APPEARANCE BEFORE THE LD. CIT(A) WAS DUE TO REASON BEYOND THE CONTROL OF THE ASSESSEE. ITA NO:-7207/DEL/2018 (ASSESSMENT YEAR: 2014-15) PAGE | 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECT ING THE APPLICATION OF CONDONATION OF DELAY DESPITE THE ASS ESSEE HAVING SUFFICIENT CAUSE FOR THE DELAY IN FILING OF APPEAL. 4. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ADDITION OF RS. 10,22,154/-, MADE BY A.O. BY INVOKING SECTION 5 4F OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS OF THE CASE. (II) THAT THE DISALLOWANCE WAS MADE DESPITE THE ASS ESSEE BEING ELIGIBLE FOR THE SAME. [B]. ASSESSMENT ORDER DATED 05.12.2016 WAS PASSED B Y THE AO IN WHICH AN ADDITION OF RS.10,22,154/- WAS MADE ON AC COUNT OF LONG TERM CAPITAL GAIN (IN SHORT LTCG). AGGRIEVED, TH E ASSESSEE FILED APPEAL BEFORE LD.CIT(A). THE ASSESSEES APPEAL WAS DISMISSED BY LD.CIT(A) ON GROUNDS OF LIMITATION, BY REFUSING TO CONDONE THE DELAY IN FILING OF APPEAL BEFORE LD.CIT(A) HAVING REGARD TO TIME FRAME PRESCRIBED U/S 249(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT ACT). A PERUSAL OF THE AFORESAID IMPUGNED ORDER DATED 11.09 .2018 OF LD.CIT(A) SHOWS THAT THE AFORESAID APPELLATE ORDER WAS PASSED EX- PARTE QUA THE ASSESSEE. PERUSAL OF THE AFORESAID I MPUGNED ORDER FURTHER SHOWS THAT THE REASONS FOR DELAY IN FILING OF APPEAL BEFORE LD.CIT(A) BY THE ASSESSEE DOES NOT FIND A MENTION I N HIS ORDER. ON PERUSAL OF THE ORDER, IT WAS ALSO FOUND THAT TWO NO TICES WERE SENT THROUGH E-MAIL TO THE ASSESSEE BY THE LD.CIT(A), FI XING THE DATES OF ITA NO:-7207/DEL/2018 (ASSESSMENT YEAR: 2014-15) PAGE | 3 HEARING ON 21.05.2018 & 17.08.2018. AS THE ASSESSE E DID NOT AVAIL OF THESE OPPORTUNITIES, LD.CIT(A) PASSED THE AFORES AID IMPUGNED ORDER DATED 11.09.2018 EX-PARTE QUA THE ASSESSEE ON GROUNDS OF LIMITATION. [C]. AGGRIEVED AGAIN THE ASSESSEE HAS FILED THIS PR ESENT APPEAL IN INCOME TAX APPELLATE TRIBUNAL (IN SHORT ITAT). A T THE TIME OF HEARING BEFORE US, LD. COUNSEL FOR THE ASSESSEE PRA YED FOR ONE MORE OPPORTUNITY BEFORE LD.CIT(A), TO EXPLAIN THE REASON S FOR DELAY IN FILING OF APPEAL BEFORE LD.CIT(A). FOR THIS PURPOS E, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MATTER MAY BE SET A SIDE AND RESTORED TO THE FILE OF LD.CIT(A). LD. DR EXPRESSE D NO OBJECTION TO THIS AND AGREED WITH THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE TO RESTORE THE ISSUE TO THE FILE OF LD.CIT (A) FOR FRESH ORDER. [D]. WE HAVE HEARD BOTH SIDES. WE HAVE PERUSED MAT ERIALS ON RECORD. WE FIND THAT LD.CIT(A) COULD NOT CONSIDER THE REASONS FOR DELAY IN FILING OF APPEAL BEFORE LD.CIT(A) BY THE A SSESSEE, HAVING REGARD TO TIME FRAME PRESCRIBED U/S 249(3) OF THE A CT BECAUSE OF FAILURE OF THE ASSESSEE TO AVAIL OF TWO OPPORTUNITI ES GIVEN BY LD.CIT(A). AT THE TIME OF HEARING BEFORE US, BOTH SIDES HAVE AGREED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR FRESH ORDER. HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THIS CASE AND AS BOTH SIDES HAVE AGREED, WE SET ASIDE THE IMPUGNED A PPELLATE ORDER ITA NO:-7207/DEL/2018 (ASSESSMENT YEAR: 2014-15) PAGE | 4 DATED 11.09.2018 OF LD.CIT(A) AND RESTORE THE ISSUE TO THE FILE OF LD.CIT(A) WITH THE DIRECTION TO DECIDE AFRESH; AFTE R PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE, WHETHER THE RE WERE SUFFICIENT GROUNDS TO CONDONE THE DELAY IN FILING O F APPEAL BEFORE LD. CIT(A) BY THE ASSESSEE, HAVING REGARD TO THE PROVI SIONS OF SECTION 249(3) OF THE ACT. IF THE LD.CIT(A) IS SATISFIED THAT THERE WERE SUFFICIENT GROUNDS TO CONDONE THE DELAY IN FILING O F APPEAL BEFORE LD.CIT(A) BY THE ASSESSEE; THEN LD.CIT(A) IS FURTHE R DIRECTED TO DECIDE THE DISPUTED ISSUES RAISED IN ASSESSEES APP EAL BEFORE LD. CIT(A), ON MERITS, AFTER PROVIDING THE ASSESSEE REA SONABLE OPPORTUNITY, IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO AVOID SEEKING ADJOURNMENTS FROM LD.CIT(A) EXCEPT WHEN IT IS UNAVOIDABLE. THE ASSESSEE IS FURTHER DIRECTED TO AP PEAR IN THE OFFICE OF THE LD.CIT(A) ON 31.10.2019 TO RECEIVE NOTICE OF HEARING FROM THE OFFICE OF LD.CIT(A). [E]. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/09 /2019. SD/- SD/- (H.S.SIDHU) (ANADEE NATH MIS SHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 03/09/2019 * AMIT KUMAR * ITA NO:-7207/DEL/2018 (ASSESSMENT YEAR: 2014-15) PAGE | 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI