Bali Mohammad, Gurgaon V. ACIT (OSD), WARD - 31(2), New Delhi

ITA 735/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0113 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 10-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV PUNDIR
• Keywords: Principle of natural justice; Set aside
• Section: 143(2); 69A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-2 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.735/DEL/2020 ASSESSMENT YEAR : 2011-12 BALI MOHAMMAD, HOUSE NO.1, DHULWANT GHUSBAITHI, TEHSIL TAURU, KIRNARI BHOOTLAKA, PIPKA, PATOOKA, MANDOAL, GURGAON, HARYANA-122105. PAN-ATIPM3389F VS ACIT(OSD), WARD-31(2), NEW DELHI APPELLANT RESPONDENT APPELLANT BY SH.VISHAL KALRA, ADV. RESPONDENT BY SH.GAURAV PUNDIR, SR. DR DATE OF HEARING 19.07.2021 DATE OF PRONOUNCEMENT 23 .07.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-11, NEW DE LHI DATED 16.08.2019. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. ' THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ('CIT(A)') HAS ERRED IN PASSING AN EX-PARTE CONFIRMING THE ASSESSMENT FRAME D VIDE ASSESSMENT ORDER DATED DECEMBER 17, 2018 WITHOUT APPRECIATING THAT THE RELEVANT NOTICES WERE NOT SER VED TO THE APPELLANT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A) SHOULD HAVE PASSED A SPEAKING ORDER ON MERIT S DISPOSING ALL GROUNDS OF APPEAL EVEN IF THE APPEAL WAS TO BE DISPOSED EX- PARTE FOR WANT OF PROSECUTION. ITA NO.735/DEL/2020 2 | P A GE 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE JURISDICTION ASSUMED BY THE ASSESSING OFFICER ('AO' ) TO ASSESS THE INCOME UNDER SECTION 147 READ WITH SECTION 148 OF THE ACT IS BAD IN LAW AND VOID AB-INITIO AND ACCORDINGLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO SUCH INVALID JURISDICT ION IS LIABLE TO BE QUASHED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO HAS ERRED IN INITIATION OF THE ASSESSMENT PROCEEDIN GS UNDER SECTION 147 OF THE ACT SOLELY BASED UPON ITS DATA N MS INFORMATION AND ASSUMED ESCAPED OF INCOME OF THE AP PELLANT. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO HAS ERRED IN PASSING ASSESSMENT ORDER UNDER SECTION S 147/144 OF THE ACT WITHOUT PROVIDING THE REASONS RECORDED F OR INITIATION OF ASSESSMENT PROCEEDINGS, WHICH IS SINE QUA NON FOR C OMPLETING ASSESSMENT UNDER SECTION 147 OF THE ACT. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, AO HAS ERRED IN COMPLETING THE ASSESSMENT UNDER SECTIO NS 147/144 OF THE ACT WITHOUT ISSUING MANDATORY NOTICE UNDER S ECTION 143(2) OF THE ACT. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO ERRED IN MAKING ADDITION OF RS.9,59,210/- UNDER SECTION 69A OF ACT ARBITRARILY, UNWARRANTED, UNLAWFUL, UNJUSTIF IED AND BAD IN LAW WITHOUT ANY IOTA OF ANY FINDING BY THE AO. THE CIT(A) FURTHER ERRED IN UPHOLDING THE SAME EX-PARTE WITHOUT BEING APPRECIATING THE RECORDS BELOW. 8. THAT THE AO ERRED ON FACTS AND IN LAW IN LEVYING INTEREST UNDER SECTIONS 234A, 2348, 234C AND 2340 OF THE ACT. 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS RE-OPENED ON THE GROUND OF CERTAIN INF ORMATION REGARDING PURCHASE MADE FROM HARYANA FOREST DEVELOPMENT CORPO RATION LTD. OF ITA NO.735/DEL/2020 3 | P A GE RS.9,59,209/-. BEFORE THE ASSESSING OFFICER, THERE WAS NO REPRESENTATION ON BEHALF OF THE ASSESSEE. THEREFORE, THE ASSESSIN G OFFICER TREATED THE ENTIRE AMOUNT AS UNEXPLAINED AND ASSESSED INCOME AT RS.9,59,209/-. 3. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED A PPEAL BEFORE LD.CIT(A). BEFORE LD.CIT(A) ALSO, THERE WAS NO RE PRESENTATION ON BEHALF OF THE ASSESSEE. THEREFORE, THE ACTION OF THE ASSESSI NG OFFICER WAS FOUND IN THE APPEAL AND THE APPEAL OF THE ASSESSEE WAS DISMI SSED EX-PARTE TO THE ASSESSEE. 4. NOW, THE ASSESSEE PREFERRED PRESENT APPEAL BEFOR E THIS TRIBUNAL. 5. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED T HAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY. HE FURTHER S UBMITTED THAT THE ASSESSEE IS AN ILLITERATE PERSON AND NOTICES SENT B Y THE REVENUE, WERE NOT RECEIVED BY THE ASSESSEE. THEREFORE, HE PRAYED THA T IN THE INTEREST OF PRINCIPLES OF NATURAL JUSTICE, THE GROUNDS RAISED B Y THE ASSESSEE BE SET ASIDE TO LD.CIT(A) FOR DECISION ON MERIT. 6. ON THE CONTRARY, LD. SR. DR OPPOSED THESE SUBMIS SIONS AND SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE BEEN VIGI LANT. HE CANNOT SLEEP AFTER FILING THE APPEAL. 7. I HAVE HEARD CONTENTIONS OF BOTH THE PARTIES AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CONSIDERIN G THE MATERIAL AVAILABLE ON RECORD, I AM OF THE CONSIDERED VIEW THAT ATLEAST LA ST OPPORTUNITY SHOULD HAVE BEEN GRANTED TO THE ASSESSEE FOR REPRESENTING THIS CASE. THEREFORE, IN ITA NO.735/DEL/2020 4 | P A GE THE PRINCIPLES OF NATURAL JUSTICE, I DEEM IT PROPER TO RESTORE THE APPEAL TO LD.CIT(A) TO DECIDE AFRESH. THE ASSESSEE IS HEREBY DIRECTED NOT TO SEEK ADJOURNMENT BEFORE LD. CIT(A) EXCEPT OTHERWISE PREV ENTED BY EXTREME EXIGENCIES. THUS, GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 23 RD JULY, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI