M/s. HCP Petrochem Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 739/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4250 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 07-09-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V RAJ KUMAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-1 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-739/DEL/2016 (ASSESSMENT YEAR-2006-07) HCP PETROCHEM PVT. LTD., A-3/3A, GREEN APARTMENTS, PASCHIM VIHAR, NEW DELHI-110063. PAN-AABCH1353F ( APPELLANT) VS DCIT, CENTRAL CIRCLE-18, NEW DELHI. (RESPONDENT) ASSESSEE BY SH. V.RAJ KUMAR, ADV. REVENUE BY SH.ANIL SHARMA, SR.DR ORDER PER DIVA SINGH, JUDICIAL MEMBER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 12.01.2016 OF CIT(A)-27, NEW DELHI PERTAINING TO 2006-07 AY. ALTHOUGH GROUNDS ASSAILING THE ADDITION ON MERITS AND THE JU RISDICTION INVOKED BY THE AO ARE ALSO RAISED HOWEVER THE PARTIES WERE HEARD ONLY IN RESPE CT OF THE PRAYER RAISED VIDE GROUND NO.1. THE SAME IS REPRODUCED HEREUNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN 1. DISMISSING THE APPEAL WITHOUT PROVIDING DUE REASONA BLE OR ADEQUATE OPPORTUNITY OF HEARING AND ALSO WITHOUT CONSIDERING THE WRITTEN AND ORAL SUBMISSIONS MADE DURING THE HEARING IN THE COU RSE OF APPELLATE PROCEEDINGS. 2. THE LD.AR REFERRING TO THE GROUNDS RAISED SUBMIT TED THAT THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS BEFORE THE CIT(A) AND PRESUMED THAT THEY WERE SUFFICIENT FOR DECIDING THE ISSUED IN HIS FAVOUR AND THUS DID NOT APPEAR BEFORE THE SAID AUTHORITY. HOWEVER, THE IMPUGNED ORDER IT WAS SUBMITTED HAS BE EN PASSED WITHOUT TAKING INTO CONSIDERATION, THE WRITTEN SUBMISSIONS FILED. THE LD.AR WAS REQUIRED TO SHOW THE WRITTEN SUBMISSIONS STATED TO BE FILED AS THEY DO NOT FIND ANY MENTION IN THE IMPUGNED ORDER. THE LD.AR STATED THAT HE IS UNDER INSTRUCTION THAT THEY WERE FILED HOWEVER HE IS NOT ABLE DATE OF HEARING 07.09.2016 DATE OF PRONOUNCEMENT 04 .11.2016 I.T .A .NO.-739/DEL/2016 PAGE 2 OF 3 TO LAY HIS HANDS THEREON. IT WAS HIS PRAYER THAT A N OPPORTUNITY MAY BE PROVIDED AND HE WOULD UNDERTAKE THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS IN THE EVENTUALITY, THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A ). 3. A PERUSAL OF THE RECORD SHOWS THAT THE CIT(A) AF TER RECORDING FOUR SPECIFIC OPPORTUNITIES ON WHICH DATES THE ASSESSEE FAILED TO APPEAR PROCEEDED TO DECIDE THE ISSUES IN THE FOLLOWING MANNER:- 4.2. FURTHER, IN VIEW OF THE PROVISIONS OF SECTION 251(1)(C), THE COMMISSIONER OF INCOME TAX APPEALS HAS THE POWER TO DISPOSE OF AN APPEAL IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINKS FIT. IN THE INSTANT CASE THERE IS ENOUGH GROUND OF NON APPE ARANCE OF THE APPELLANT TO DECIDE THE MATTER EX-PARTE, THE APPEAL IS DECIDED O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. HENCE, THE ACTION OF THE AO I S UPHELD AND THE APPEAL IS DISMISSED. 4. IT IS SEEN THAT BEFORE THE CIT(A), THE FOLLOWING GROUNDS HAD BEEN RAISED BY THE ASSESSEE:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ACTION OF THE LD. ASSESSING OFFICER ERRED IN :- 1. INITIATING PROCEEDINGS U/S 147/148 OF THE INCOME TAX ACT, 1961 AND PASSING ORDER U/S 143(3)/148 OF THE ACT WITHOUT THE RE BEING ANY VALID REASON FOR REOPENING THE ASSESSMENT; 2. PASSING ORDER U/S 143(3)/148 OF THE ACT WITHOUT DISPOSING OFF THE OBJECTIONS TO THE RE-OPENING OF THE ASSESSMENT; 3. MAKING ADDITION OF RS.20 LACS TO THE RETURNED IN COME TREATING THE SHARE APPLICATION MONEY RECEIVED AS INCOME FROM UNDISCLOS ED SOURCES; ARE ALL THE MOST ARBITRARY, ERRONEOUS AND ILLEGAL A ND MUST BE QUASHED WITH THE DIRECTIONS FOR APPROPRIATE RELIEF. 5. CONSIDERING THE DECISION ARRIVED AT IN THE AFORE -MENTIONED EXTRACT OF THE IMPUGNED ORDER, IT CANNOT BE SAID TO BE AN ORDER IN ACCORDAN CE WITH THE STATUTORY PROVISIONS WHICH ARE SET OUT IN SUB-SECTION (6) OF SECTION 250 WHICH IS EXTRACTED HEREUNDER:- PROCEDURE IN APPEAL 250. (1) . (2) (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A)............................................... .................... I.T .A .NO.-739/DEL/2016 PAGE 3 OF 3 6. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVE N BY THE LD.AR THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS AND ALSO TAKIN G NOTE OF THE FACT THAT THE AFORESAID STATUTORY MANDATE IS NOT MET BY CIT(A) WHILE PASSIN G THE ORDER, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE F ILE OF THE CIT(A) DIRECTING THE SAID AUTHORITY PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE OPPORTU NITY SO PROVIDED IT IS HOPED IS NOT ABUSED BY THE ASSESSEE AS FAILING WHICH THE LD.CIT( A) SHALL BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04 TH OF NOVEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT A SSISTANT REGISTRAR ITAT NEW DELHI