Rajesh Tyagi, Ghaziabad V. ITO, Ward-2(2), Ghaziabad

ITA 8180/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3274 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO. 8180/DEL/2019 (ASSESSMENT YEAR: 2009-10) RAJESH TYAGI CH. NO. 206-207, ANSAL SATYAM RDC, RAJ NAGAR, GHAZIABAD, UTTAR PRADESH. PAN NO. ACQPT1046F VS. INCOME TAX OFFICER WARD 2(2) GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI SANJIV MAHAJAN, SR. DR DATE OF HEARING 18.10.2021 DATE OF PRONOUNCEMENT 20.10.2021 HEARING CONDUCTED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, WHEREIN THE CORRECTNESS OF THE ORDER DATED 31.07.2019 OF CIT(AP PEALS), GHAZIABAD PERTAINING TO 2009-10 ASSESSMENT YEAR IS ASSAILED. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE ALTHOUGH AN ADJOURNMENT APPLICATION SEEKIN G TIME HAD BEEN FILED. HOWEVER, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. SR. DR IT WAS DEEMED APPROPRIATE TO REJECT THE ADJOURN APPLICATION AND PROCEED WITH THE APPEAL EX PARTE QU A THE ASSESSEE APPELLANT ON MERITS. THE SAID VIEW WAS TAKEN IN TH E CONTEXT OF THE PRAYER MADE BY THE ASSESSEE BY WAY OF GROUND NO. 1 RAISED IN THE PRESENT APPEAL. BY THE REMAINING GROUNDS THE ASSES SEE ASSAILS THE MERITS OF THE ORDER PASSED WHEREIN PENALTY SUSTAINE D BY THE AO HAS BEEN CONFIRMED. ITA NO.8180/DEL/2019 PAGE 2 OF 3 3. GROUND NO. 1 WHICH WAS TAKEN UP FOR HEARING READ S AS UNDER: 1. BECAUSE, LD. CIT(A) GROSSLY ERRED IN SUSTAINING PE NALTY U/S 271(1)(C) BEING THE SAME IS IMPOSED BY NON-JURISDICTIONAL AO WHICH IS BASED ON QUANTUM ORDER WHICH AGAIN IS PASSED BY NON-JURIS DICTIONAL AO AND IS BEYOND JURISDICTION EVEN OTHERWISE HENCE IMP OSITION OF PENALTY BASED ON SUCH ORDER IS INHERENTLY ILLEGAL. 4. ON A PERUSAL OF THE IMPUGNED ORDER IT IS SEEN TH AT EVEN BEFORE THE CIT(A) THIS ISSUE HAD BEEN AGITATED BY THE ASSE SSEE. IT IS FURTHER SEEN THAT APART FROM THIS CHALLENGE THE ASSESSEE HA D ALSO ASSAILED THE ORDER IN THE GROUNDS OF BEING VAGUE AS IN THE NOTIC E IT WAS ALLEGED THE AO HAD NOT STRUCK OFF THE RELEVANT POSITION NOT APP LICABLE I.E. PENALTY WAS BEING LEVIED ON THE GROUNDS OF FILING OF INACCU RATE PARTICULARS OR ON THE GROUNDS OF CONCEALMENT WHICH WAS ALLEGED TO BE NOT BORNE OUT FROM THE NOTICE SERVED. RELIANCE WAS PLACED UPON THE PR OPOSITION OF LAW AS AVAILABLE IN MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 (KARNATAKA). 5. IT IS EVIDENT FROM A READING OF PARA 5.2 TO PAR A 5.2.3 OF THE IMPUGNED ORDER THAT THE ISSUE WAS CONSIDERED IN THE CONTEXT OF THE POSITION OF LAW AS CONSIDERED IN SSA EMERALD MEADOW S 386 ITR 13 ONLY. HOWEVER, THE CHALLENGE POSED ON THE ASSUMPTION OF J URISDICTION BY THE ASSESSING OFFICER WAS NOT ADDRESSED DESPITE THE FAC T THAT IT WAS GROUND NO. 2 RAISED BEFORE THE CIT(APPEALS). ACCORDINGLY, ON THIS SHORT POINT ALONE WHICH GOES TO THE VERY ROOT OF THE MATTER THE ENTIRE ORDER IS SET ASIDE IN TOTO AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(APPEALS) WITH THE DIRECTION TO FIRST DECIDE TH E JURISDICTIONAL CHALLENGE POSED BY THE ASSESSEE AND THEREAFTER PROC EED TO DECIDE THE ISSUES ON MERITS OR ANY OTHER GROUND MAINTAINABLE B EFORE THE SAID AUTHORITY IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT A REASONABLE OPPORTUNITY OF BEING HEARD IS TO BE GRANTED AND THE ASSESSEE BEFORE THE PASSING OF THE ORDER. ITA NO.8180/DEL/2019 PAGE 3 OF 3 6. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT T HE TIME OF HEARING ITSELF. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/10/2021 SD /- (DIVA SIN GH) JUDICIAL MEMBER *KAVITA ARORA, SPS COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT CONCERNED BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR, ITAT DELHI BENCHES: DELHI.