R. S. Jewellers, New Delhi V. ITO, Ward- 53(5), New Delhi

ITA 7568/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3316 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 18-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JIWANI
• Assessee Lawyers: V K TULSIYAN
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 7568 /DEL/201 7 [A.Y. 20 08 - 09 ] R.S. JEWELLERS VS. THE I . T .O G - 2, SOUTH EX. PLAZA - WARD 53 ( 5 ) 389, M ASJID MOTH, NEW DELHI SOUTH EX PART II NEW DELHI PAN : AAAFR 9322 G [ ASSESSEE ] [RESPONDENT] DATE OF HEARING : 2 1 . 0 2 .201 8 DATE OF PRONOUNCEMENT : 08 .0 3 .201 8 ASSESSEE BY : SHRI V.K. TULSIYAN, CA REVENUE BY : SHRI JIWANI , SR. DR ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - 18, NEW DELHI VIDE ORDER DATED 17.10.2017 FOR THE ASSESSMEN T YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LD. CIT(A) ERRED IN PASSING THE ORDER BY DISMISSING IN LIMINIE IN A MECHANICAL WAY AS APPEARED FROM 2 ITA NO. 7568 /DEL/201 7 ORDER ITSELF I.E. ORDER PASSED ON 17.10.17 WHEREAS BY ADMITTING THAT REPLY OF NOTICE FILED DATED 30.10.17. 2. THE LD. CIT(A) ERRED IN PASSING THE ORDER BY DISMISSING IN LIMINIE WITHOUT APPRECIATING THE SUBMISSIONS FILED BY THE ASSESSEE IN CONNECTION WITH ADMISSION OF APPEAL FILED MANUALLY DATED 25.04.17 AND THEREAFTER IN ELECTRONICALLY ON 22.02.17 ALONG WITH AN AFFIDAVIT FOR CONDONATION OF DELAY. 3. THE LD. CIT(A) ERRED IN PASSING THE ORDER BY DISMISSING IN LIMINIE BY SUO - MOTTO OBSERVING THAT HE HAS NO POWER TO CONDONE THE DELAY. 4. THE LD. CIT(A) ERRED ON FACTS AND IN L AW IN UPHOLDING THE ORDER PASSED BY THE LD. AO BY MAKING THE ADDITIONS OF RS.8,21,651/ - AS THE SAME ARE NOT UNLAWFUL, ON SURMISES AND UNJUSTIFIED. 5. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER PASSED BY THE LD. AO DATED 31.03.16 PASS ED U/S 147/143(3) OF THE ACT IS NOT ILLEGAL, VOID AND CONTRARY TO SETTLED LAW ON THE PREMISES THAT THE CONDITIONS PRECEDENT FOR LIMITATION OF PROCEEDINGS U/S 148 WERE SATISFIED. 3 ITA NO. 7568 /DEL/201 7 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE POINTED OUT AT PAGE 7 OF THE LD. CIT(A) THAT SHOW CAUSE NOTICE WAS ISSUED ON 30.10.2017. WHEREAS PER PAGE 1 OF LD. CIT(A) ORDER, THE ORDER ITSELF WAS PASSED ON 17.10.2017. THEREFORE THE ORDER WAS PASSED IN ADVANCE BY THE LD. CIT(A) AND APPELLATE PROCEEDINGS WHERE SHOWN TO HAVE CONT INUED TILL 30.10.2017. THEREFORE THE ORDER IN ITSELF IS BAD AND VOID AB - INITIO AND SHOULD BE QUASHED. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. I DO NOT FIND ANY INFIRMITY IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSES SEE HEREINABOVE. THE LD. CIT(A) HAS PASSED THE ORDER IN ADVANCE ON 17.10.2017 AND APPELLATE PROCEEDINGS CONTINUED THEREAFTER ONLY ON PAPERS. THE LD. DR COULD NOT BRING ANY COGENT EXPLANATION IN THIS REGARD EXCEPT THAT THERE MAY BE A TYPING MISTAKE WHICH CANNOT BE ACCEPTED. BUT KEEPING IN VIEW THE INTEREST OF JUSTICE, THE MATTER IS SET ASIDE TO THE FILE OF LD. CIT(A) WHO WILL AFFORD ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE DE - NOVO. THUS ALL THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 ITA NO. 7568 /DEL/201 7 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO.7568/DEL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRO NOUNCED IN THE OPEN COURT ON 0 8 . 0 3 .201 8 . SD/ - [B.P. JAIN] ACCOUNTANT MEMBER DATED: 08 TH MARCH, 2018 VL/ COPY FORWARDED TO: 1 . ASSESSEE 2 . RESPONDENT 3 . CIT ASSISTANT REGISTRAR 4 . CIT(A) ITAT, NEW DELHI 5 . DR