S.K. Kaushik, New Delhi V. ITO, New Delhi

ITA 854/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2717 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 05-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K TULSIYAN
• Keywords: Reopening of assessment; Unexplained investment; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME - TAX APPELLATE TRIBUNAL, DELHI BENCH G , NEW DELHI BEFORE : SHRI C.M. GARG , JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 854/DEL./2017 ASSESSMENT YEAR: 2008 - 09 S.K. KAUSHIK, L/H OF SMT. RAJ KISHORI, 1/27A, EAST PUNJABI BAGH, NEAR HANUMAN MANDIR, NEW DELHI. PAN AMUPK 0917K (APPELLANT) VS. INCOME - TAX OFFICER, WARD 41(5), NEW DELHI. (RESPONDENT) A PPELLANT BY SH. V.K. TULSIYAN, C.A. RE SPONDENT BY SH. N.K. BANSAL, SR. DR ORDER PER L.P. SAHU, A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) - XIV, NEW DELHI DATED 19.12.2016 FOR THE ASSESSMENT YEAR 2008 - 09 ON THE FOLLOWING GROUNDS : 1) THAT THE ID. CIT(A) ERROR IN LAW AND FACTS IN DECIDING THE APPEAL OF ASSESSEE EX - PARTY QUA ASSESSEE ON 19/12/2016 CONFIRMING THE ADDITIONS MADE BY ASSESSING OFFICER VIDE ORDER U/S 143(3 ) DT 25/03/2015. 2) THAT ON THE FACTS & REFERENCE OF THE CASE THE IMPUGNED/ EX - PARTY ORDER OF ID. CIT(A) DT 19/12/2016 BE CANCELLED AS THE SAME IS PASSED WITHOUT EFFECTING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHICH IS EVIDENT FROM LETTER AT 11/01/2017 FILED WITH LD. CIT(A) - 14 . DATE OF HEARING 05.06.2017 DATE OF PRONOUNCEMENT 27 .07.2017 ITA NO. 854/DEL./2017 2 3) THAT THE ID. CIT(A) ISSUED THE ALLEGED NOTICES OF HEARI NG ON OLD ADDRESS D - 191, KARAMPURA, NEW DELHI - 110015, WHEREAS ADDRESS GIVEN BY ASSESSEE BEFORE THE ASSESSING OFFICER AND IN FORM - 35 FILED BEFORE CIT(A) - 14 IS 1/27A EAST PUNJABI BAGH , NEAR HANUMAN MANDIR, NEW DELHI - 110026. THEREFORE ON THIS GROUND ALONE WITH EXPART E ORDER OF LD. CIT(A) BE SET ASIDE & BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER A FFORDING ADEQUATE & REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4) THAT THE ID. CIT(A) ERRED IN NOT ADJUDICATION THE GROUND NO.L W HEREBY THE ASSESSEE CHALLENGED THE REOPENING OF ASSESSMENT. 5 . WITHOUT PREJUDICE TO THE ABOVE ON MERITS, THE LD, CIT(A) ERRED IN A).CONFIRMING THE ADDITION OF RS.32,00,000.00/ - WHICH WAS MADE BY ASSESSING OFFICER ON WHOLLY ILLEGALLY & ERRONEOU S GROUNDS . B).CONFIRMING THE ADDITIONS OF RS. 25,50,000.00/ - WHICH WAS MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT WITHOUT AFFECTING PROPER APPEAL OF BEING HEARD TO THE ASSESSEE C). CONFIRMING THE ADDITIONS OF RS.57,77,459/ - ON ACCOUNT OF ALLEGED UNEXPLAIN ED DEPOSITS IN BANK ACCOUNT OF ASSESSEE WITH UCO BANK WITHOUT A FFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6). THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OR ALL THE AFORESAID GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. AT THE OUTSET OF HEARING THE LD. AR SUBMITTED THAT THE LD. CIT(A) HAS MADE EXPARTE ORDER. IN THE IMPUGNED ORDER, THE LD. CIT(A) HAS MENTIONED THAT THE CASE WAS FIXED FOR HEARING ON ITA NO. 854/DEL./2017 3 06.05.2016, 01.06.2016, 14.09.2016 AND 15.12.2016 BUT NONE ATTENDED NOR ANY REQUEST FOR ADJOURNMENT WAS MADE. THE LD. AR, HOWEVER, SUBMITTED THAT THE NOTICES WERE SENT BY THE LD. CIT(A) AT THE ADDRESS OTHER THAN THE ADDRESS GIVEN AT SL. NO. 12 OF FORM NO. 35 FILED BEFORE HIM. IT WAS ALSO SUBMITTED THAT AFTER PASSING THE IMPUGNED ORDER, THE ASSESSEE FILED AN APPLICATION TO RECALL THE EXPARTE ORDER SATING AS UNDER : IN THIS CONNECTION WE MAY POINT OUT THAT THERE IS NO FAILURE ON OUR PART AS THE NOTICE(S) DAT ED 08.04.2016 & 09.05.2016 WERE NEVER RECEIVED BY THE ASSESSEE. AS REGARDS NOTICE DATED 23.09.2016, WHEREIN DATE OF HEARING WAS FIXED ON 14.09.2016 IS CONCERNED, IT APPEARED THAT THERE WAS A TECHNICAL/TYPOGRAPHICAL MISTAKE IN THE NOTICE, NEVERTHELESS, ON 14.09.2016 A LETTER ALONG WITH POWER OF ATTORNEY FOR ADJOURNMENT WAS FILED AT OUR END AND OUR CASE WAS ADJOURNED TO 18.10.2016. THIS LETTER ALONG WITH POWER OF ATTORNEY IS PLACED ON RECORDS AND THEREAFTER ON 18 . 10.2016, OUR DATE WAS ADJOURNED TO 17.11.2016 AND ON 17.11.2016 OUR DATE WAS ADJOURNED TO 09 . 12.2016. THESE TWO DATES WERE MENTIONED ON THE COVER OF THE FILE IN OUR PRESENCE. FINALLY, NOTICE DATED 07.12.2016, FIXING THE DATE OF HEARING ON 15.12.2016 WAS NEVER SERVED ON THE ASSESSEE. FROM PERUSAL OF ABOVE, YOUR HONOUR WILL BE GOOD ENOUGH TO APPRECIATE THAT THERE IS NO INTENTIONAL NON - COMPLIANCE ON OUR PART TO ATTEND THE HEARING. WE, THEREFORE, REQUEST YOUR HONOUR TO RE - CALL YOUR EX - PARTE ORDER AND RE - ADJUDICATE THE APPEAL AFRESH AFTER GIVING PROPER O PPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO. 854/DEL./2017 4 IT WAS SUBMITTED THAT THE EXPARTE ORDER OF THE LD. CIT(A) DESERVES TO BE SET ASIDE , HAVING BEEN PASSED WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD . 3. ON THE OTHER HAND, THE LD. DR DID NOT MAKE ANY OBJECTION ON THE ABOVE SUBMISSIONS OF THE LD. AR. HOWEVER, HE RELIED ON THE ORDER OF THE FIRST APPELLATE AUTHORITY. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS, WE FIND THAT THERE IS SHARP CONTRADICTION BETWE EN THE DATES OF HEARING MENTIONED BY THE FIRST APPELLATE AUTHORITY IN HIS ORDER AND THOSE MENTIONED BY THE ASSESSEE IN ITS APPLICATION DATED 11.01.2017 FILED BEFORE THE LD. CIT(A) FOR RECALLING THE IMPUGNED ORDER. IN THE TOTALITY OF FACTS, WE OBSERVE THAT IN THE INTEREST OF NATURAL JUSTICE, THE LITIGANT SHOULD BE GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD BEFORE FINALLY DECIDING THE LITIGATION. IN THE INSTANT CASE, THE APPELLANT APPEARS TO HAVE NOT BEEN GIVEN PROPER OPPORTUNITY OF HEARING AT THE FIRST APPE LLATE STAGE, AS STATED ABOVE. ACCORDINGLY, THE MATTER DESERVES TO BE REMITTED BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE APPEAL AFRESH AFTER GIVING REASONABLE ITA NO. 854/DEL./2017 5 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE LD. CIT(A) IN HEARING OF APPEAL AND SHALL NOT SEEK UNNECESSARY ADJOURNMENTS. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.07.2017 . SD/ - SD/ - ( C.M. GARG) ( L.P. SAHU ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27.07.2017 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI