Shri Badri Vishal Aggarwal, V. ACIT, Nainital

ITA 737/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9620 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-12-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 27-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK SENIOR
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) SHRI R.P. TOLANI, JM AND SHRI A.K. GARODIA, AM ITA NO.737/DEL./2009 (ASSESSMENT YEAR : 1998-99) SHRI BADRI VISHAL AGGARWAL, VS. ACIT, C/O PROP. MAHALAXMI AGENCIES, NAINITAL. KARKHANA BAZAR, ALMORA. (PAN : ABWPA3315M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.V.S. GUPTA, CA REVENUE BY : MS. PRATIMA KAUSHIK, SENIOR DR ORDER PER R.P. TOLANI, JUDICIAL MEMBER : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R OF CIT (APPEALS) FOR THE ASSESSMENT YEAR 1998-99. THE FOLLOWING GRO UNDS OF APPEAL ARE RAISED BY THE ASSESSEE :- 1. THE ACTION OF THE LD.CIT (A)S IN NOT GIVING RE ASONABLE OPPORTUNITY & DECIDING THE APPEAL IS ILLEGAL, ARBIT RARY, UNWARRANTED, UNCALLED FOR AND AGAINST THE FACTS & C IRCUMSTANCES OF THE CASE. 2. THE ACTION OF THE LD. CIT (A)S IN CONFIRMING TH E ACTION OF THE LD. ACIT IN :- (A) NOT FOLLOWING HON'BLE ITATS ORDERS IN ASSESSEE CASE (B) IN MAKING AN ADDITION OF RS.5,95,950 AS UNDISCLOSED INCOME TO THE RETURNED INCOME ITA NO.737/DEL./2009 2 (C) IN NOT ACCEPTING THE RETURNED INCOME IS ILLEGAL, ARBITRARY, UNWARRANTED, UNCALLED FOR A ND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT RESERVE THE RIGHT TO ADD/ALTER/MOD IFY/AMEND OR WITHDRAW ANY GROUND OF APPEAL. 2. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS FILED BY LETTER DATED 20.10. 2009 ARE NOT PRESSED, HENCE THE SAME ARE DISMISSED ACCORDINGLY. 3. LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE CIT (A) DECIDED THE APPEAL EX-PARTE AS, ACCORDING TO HIM, NOBODY AP PEARED ON 15.12.2008. ASSESSEES CHARTERED ACCOUNTANT, SHRI K.V.S. GUPTA HAS FILED AN AFFIDAVIT TO THE EFFECT THAT THE ASSESSEE ENGAGED HIM FOR REPRES ENTATION BEFORE CIT (A) AND HE HAD APPLIED FOR ADJOURNMENT BY LETTER DATED 11.12.2008, WHICH WAS SENT THROUGH BLAZEFLASH COURIER. HOWEVER, THERE IS NO COMMENT BY CIT (A) ON THIS ADJOURNMENT APPLICATION. IT WAS CONTENDED THAT THE ISSUE IN QUESTION PERTAINS TO SALE OF JEWELLERY WHICH IS DECLARED BY THE ASSESSEE UNDER VDIS. IT WAS PLEADED THAT IN THE INTEREST OF NATURAL JUST ICE, THE EX-PARTE ORDER OF CIT (A) MAY BE RESTORED BACK TO HIM TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. SUFFICIENT REASON FOR INADVERTENT NON-APPEARANCE IS EXPLAINED. 4. LEARNED DR HAS NO OBJECTION FOR RESTORING THE CI T (A)S ORDER. ITA NO.737/DEL./2009 3 5. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD. LEARNED CA, WHO APPEARED, HAS HIMSELF FILED AN AFFI DAVIT TO THE EFFECT THAT THE LETTER OF ADJOURNMENT SENT BY COURIER TO CIT (A ) ON 11.12.2008 SEEKING ADJOURNMENT OF HEARING FIXED FOR THAT DAY. IN OUR VIEW, ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE, THEREFORE, EX-PARTE ORDER PASSED BY THE LEARNED CIT (A) IS SET ASIDE AND RESTORED BACK TO HIM TO DE CIDE THE SAME ON MERITS AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JANUARY, 2010. SD/- SD/- (A.K. GARODIA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF JANUARY, 2010 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A), 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.