N C R Overseas P.Ltd, New Delhi V. ACIT, Circle-17(2), New Delhi

ITA 87/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9632 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: EKTA VISHNOI
• Assessee Lawyers: V P CHAWLA; L K PAVNAM
• Keywords: Additional evidence; Set aside
• Section: 147; 148; 28

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 87/DEL/2019 (A.Y. 2010-11) NCR OVERSEAS P. LTD., 74, POORVI MARG, VASANT VIHAR, NEW DELHI 110 057 (PAN: AACCN8553C) VS. ACIT, CIRCLE 17(2), NEW DELHI ASSESSEE BY SH. L.K. PAVNAM, ADV. & SH. V.P. CHAWLA, ADV. REVENUE BY MS. EKTA VISHNOI, SR. DR. ORDER ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGN ED ORDER DATED 08.10.2018 PASSED BY LD. CIT(A)-6, DELHI ON THE FOL LOWING GROUNDS:- 1(A). THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT THE IMPUGNED ASSESSMENT ORDER DATED 29.9.2017 PASSED U/S. 144/147 OF THE I.T. ACT IS VO ID, ILLEGAL AND BAD IN LAW FOR WANT OF PROPER SERVICE O F NOTICE U/S. 148 OF THE ACT WHICH FACT THE IMPUGNED ORDER ITSELF INDICATES. (B) THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE TH AT IN THE ABSENCE OF PROPER SERVICE OF NOTICE U/S. 148 OF THE ACT, THE AO COULD NOT ASSUMED JURISDICTION TO PASS THE 2 ASSESSMENT ORDER U/S. 147 OF THE ACT AND THE IMPUG NED ORDER WAS LIABLE TO BE ANNULLED. C) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT HOLDING THAT RECOU RSE TO OTHER MODE OF SERVICE OF NOTICE AS PROVIDED U/S. 28 2 OF THE ACT OUGHT TO HAVE BEEN TAKEN BY THE DEPARTMENT AND FAILURE TO EXERCISE SUCH JURISDICTION RENDERS T HE ASSESSMENT PROCEEDINGS INVALID AND CONSEQUENT ASSESSMENT ORDER PASSED IS ALSO INVALID. D) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN HOLDING THAT DUE TO LAC K OF DILIGENCE ON THE PART OF THE APPELLANT, SERVICE OF NOTICE COULD NOT BE HELD IMPROPER. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT ALLOWING THE APPEL LANTS APPLICATION FILED UNDER RULED 46A OF THE INCOME TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENCES W HICH WERE DULY BEEN CONFRONTED TO THE AO AND FURTHER ERR ED IN NOT ADJUDICATING AND DECIDING ON THE MERIT OF T HE CASE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF 3 HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJU DICE TO EACH OTHER. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE AO HAS COMPLETED THE ASSESSMENT U/S. 147/144 OF TH E INCOME TAX ACT, 1961 (IN SHORT ACT) BY PASSING AN EXARTE ORDER 24 .09.2017 WITHOUT GIVING THE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTI ATE HIS CASE. HE FURTHER STATED NOTICE U/S. 148 OF THE ACT WAS NOT S ERVED UPON THE ASSESSEE. HE FURTHER STATED THAT LD. CIT(A) NOT AL LOWED THE ASSESSEES APPLICATION FILED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENCES. HE FILED A PAPER BOOK CONTAINING PAGES 1-129. HE REQUESTED THAT IN THE INTEREST OF JUSTIC E THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH AD JUDICATION AND APPRECIATION OF ALL THE EVIDENCES FILED BY THE ASSE SSEE FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE. 4. ON THE CONTRARY, LD. DR STATED THAT THE ASSESSEE REMAIN NON- COOPERATIVE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A). HE FURTHER STATED THAT ASSESSEE HAS NOT FILED ANY EVIDENCE BEF ORE THE AO WHICH ARE NOW AVAILABLE WITH THE ASSESSEE, THEREFORE, LD. CIT (A) HAS RIGHTLY REJECTED THE APPLICATION UNDER RULE 46A AND ACCORDINGLY, REQ UESTED THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 4 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE ORDER OF THE REVENUE AUTHORITIES INCLUDING THE ASSESSEES PAPER BOOK CONTAINING PAGES 1-129 IN WHICH ASSESSEE HE HAS AT TACHED THE COPY OF SYNOPSIS; COPY OF APPLICATION DATED 17.3.2018 FOR I SSUE OF CERTIFIED COPY OF ASSESSMENT ORDER; COPY OF APPLICATION UNDER RULE 46A; COPY OF LETTER DATED 0-5.7.2018; COPY OF REMAND REPORT DATED 6.7. 2018; COPY OF ANOTHER REMAND REPORT DATED 11.9.2018; COPIES OF RE JOINDERS DATED 12.9.2018 AND 25.9.20189 AND COPY OF WRITTEN SUBMIS SIONS DATED 12.9.2018. I FURTHER NOTE THAT AO HAS COMPLETED TH E ASSESSMENT U/S. 147/144 OF THE INCOME TAX ACT, 1961 BY PASSING AN E XPARTE ORDER 24.09.2017 WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE. I FURTHER NOTE THAT LD. CIT(A) HAS NOT ALLOWED THE ASSESSEES APPLICATION FILED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENCES. IT IS A LSO NOTED THAT ASSESSEE REMAIN NON-COOPERATIVE BEFORE THE AO. KEEPING IN V IEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE THE ISSUES IN DISPUTE REQUIRE FRESH ADJUDICATION AT THE LEVEL OF THE ASSESSING OFFICER. THEREFORE, I REMIT BACK THE ISSUES IN DISPUTE TO TH E FILES OF THE ASSESSING OFFICER FOR HEARING ON 09.12.2019 AT 10.00 AM WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER ALL THE EVIDENCES TO B E FILED BY THE ASSESSEE. ASSESSEE IS ALSO DIRECTED THROUGH HIS COUNSEL TO AP PEAR BEFORE THE ASSESSING OFFICER ON 09.12.2019 AT 10.00 AM FOR HEARING TO SUBSTANTIATE ITS CASE. IT IS MADE CLEAR THAT NO NO TICE FOR HEARING WILL BE 5 ISSUED BY THE ASSESSING OFFICER, AS THE DATE OF HEA RING HAS ALREADY BEEN PRONOUNCED. ASSESSEE IS AT LIBERTY TO FILE ANY E VIDENCES FOR SUBSTANTIATING ITS CLAIM BEFORE THE AO AND FULLY COOPERATE IN THE ASSESSMENT PROCEEDINGS BEFORE THE AO AND DID NOT TA KE ANY UNNECESSARY ADJOURNMENT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF SEPTEMBER, 2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED THE 26 TH DAY OF SEPTEMBER, 2019 SRB COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), NEW DELHI. 5. CIT(ITAT), NEW DELHI AR, ITAT