Swati Health and Education Services P.Ltd, New Delhi V. DCIT, Central circle, Noida

ITA 8172/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4419 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 26-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: VIPPUN MITTAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-8172/DEL/2018 (ASSESSMENT YEAR-2012-13) SWATI HEALTH AND EDUCATIONAL SERVICES P. LTD., D-14, 2 ND FLOOR, PREET VIHAR, NEW DELHI 92 PAN NO. AAJCS7569L) (APPELLANT) VS DCIT, CENTRAL CIRCLE, NOIDA ( RES PONDENT) APPELLANT BY SH. VIPPUN MITTAL, CA RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 25.10.2018 OF THE LD. CIT(APPEALS)-IV, KANPUR RELEVANT TO ASSESSMENT YEAR 2012-13 ON THE FOLLOWIN G GROUNDS OF APPEAL: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE INITIATION OF ASSESSMENT PROCEEDINGS AND ISSUE/ SERVICES OF NOTICES ARE NOT IN ACCORDANCE WITH THE PROVISIONS OF LAW AND ACCORDINGLY THE ASSESSMENT ORDER PASSED ON THE FOUNDATION OF SUCH NOTICE(S) IS LIABLE TO BE QUASHED AND THE CIT(A) ERRED IN NOT HOLDING SO. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION OF RS. 1,94,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961 IS 2 BEYOND THE SCOPE / JURISDICTION OF PROVISIONS OF SECTION 153A OF THE INCOME TAX ACT, 1961 AND CIT(A) ERRED IN NOT HOLDING SO. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,94,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN PASSING EXPARTE ORDER. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN NOT ADJUDICATING THE GROUNDS OF APPEAL ON MERIT. 6) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. THE AFORESAID GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3 3. LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT( A) HAS NOT GIVEN PROPER OPPORTUNITY TO ASSESSEE TO PRESE NT HIS CASE; PASSED THE EXPARTE ORDER DESPITE THE FACT THAT THE ASSESSEE WAS PREVENTED FROM APPEARING BECAUSE OF THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF T HE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND NOT OBJECTED THE REQUEST OF T HE LD. COUNSEL FOR THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER, I AM OF THE VIEW THAT LD. CIT(A) H AS PASSED THE EXPARTE ORDER WITHOUT DISCUSSING IN DETAIL THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO DID NOT DEAL TH E ISSUE ON MERIT AND PASSED A NON-SPEAKING ORDER BY DISMISSIN G THE APPEAL OF THE ASSESSEE. HOWEVER, IT IS A SETTLED LA W THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE SPEAKING ONE. 5.1 IN THIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 403 WHEREIN IT HAS HELD THAT EVEN AN ADMIN ISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURA L JUSTICE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENT, AS AFORESAID, I REMIT 4 BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH AND PASS A SPEAKING ORDER BY CONSIDER ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASS ESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . HOWEVER, THE ASSESSEE IS DIRECTED TO FILE ALL THE EVIDENCES/DOCUMENTS ETC. BEFORE HIM TO SUBSTANTIATE HIS CASE. ASSESSEE IS ALSO DIRECTED NOT TO TAKE ANY UNNECESSA RY ADJOURNMENT IN THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 14/05/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 14/05/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR