Lt. Rakesh Kumar Gupta, Delhi V. ITO, New Delhi

ITA 885/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3015 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 88 5/DEL/2017 : ASSTT. YEAR : 2012 - 13 LATE RAKESH KUMAR GUPTA, THROUGH L/H SH. RAHUL GUPTA, PROP. M/S ASHOK FOODS PRODUCTS, 2732, 1 ST FLOOR, NAYA BAZAR, DELHI - 110006 VS INCOME TAX OFFICER, WARD - 47 ( 1 ) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A FPPK1517E ASSESSEE BY : NONE REVENUE BY : SH. AMRIT LAL, SR. DR DATE OF HEARING : 17 .0 5 .201 7 DATE OF PRONOUNCEMENT : 30 .05 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 29.11.2016 OF LD. CIT(A) - 16, NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS & LAW SINCE THE FINDINGS RECORDED QUA APPEAL DISMISSAL IS IN VIOLATION TO THE PRINCIPLES OF NATURAL & SUBSTANTIAL JUSTICE FOR A DECISION IN ACCORDANCE WITH LAW. 2. BECAUSE THE ACTION IS BEING CHALLENGED ON FA CTS & LAW, FOR UPHOLDING THE INTEREST PAID AMOUNTING TO RS. 8,28,885/ - ON BORROWED FUNDS UTILISED FOR THE PURPOSE OF PROPRIETARY BUSINESS & CLAIMED EXPENDITURE U/S 37 OF THE INCOME TAX ACT, 1961 INSTEAD APPLYING SECTION ITA NO . 885 /DEL /201 7 RAKESH KUMAR GUPTA 2 57(III) FOR INTEREST PAID FOR THE PU RPOSE OF EARNING INCOME U/S 56. 3. BECAUSE THE ACTION IS BEING CHALLENGED ON FACTS & LAW, FOR DISALLOWANCE OF RS. 39,774/ - (L/5 TH SHARE OF RS. 1,98,870/ - ) ON ACCOUNT OF EXPENSES INCURRED ON CONVEYANCE EXPENSES, TELEPHONE EXPENSES, CAR EXPENSES & STAFF WEL FARE. 4. BECAUSE THE ACTION IS BEING CHALLENGED ON FACTS & LAW, FOR DISALLOWANCE OF INTEREST PAID AMOUNTING TO RS. 81,247/ - TO M/S CHOLAMANDALAM INVESTMENT ON FINANCE TAKEN FOR PURCHASE OF AUTO U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961. 3 . DURING THE CO URSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. I, THEREFORE, PROCEEDED EX - PARTE AND THE APPEAL IS DECIDED AFTER HEARING THE LD. DR. IT IS NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL EX - PARTE BY STATING T HAT THE ORDER DATED 03.10.2016 WAS SERVED UPON THE ASSESSEE ON 08.10.2016 AS PER THE TRACK FROM THE POST OFFICE DEPARTMENT. 4. IN THE PRESENT CASE, IT IS AN ADMITTED THAT THE LD. CIT(A) DECIDE THE APPEAL EX - PARTE AND MENTIONED THAT THE NOTICE DATED 03.10 .2016 WAS SERVED UPON THE ASSESSEE. HOWEVER, ON PERUSAL OF THE DETAILS MENTIONED BY THE LD. CIT(A) OBT AINED FROM THE POSTAL AUTHORITY, I T IS NOWHERE STATED THAT THE NOTICE DATED 03.10.2016 HAS BEEN SERVED TO THE ASSESSEE. I T IS ALSO NOT CLEAR TO WHOM THE NOTICE WAS SERVED ON 08.10.2016 BECAUSE NAME OF THE ASSESSEE IS NOT MENTIONED. IT IS WELL SETTLED THAT NOBODY ITA NO . 885 /DEL /201 7 RAKESH KUMAR GUPTA 3 SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPRO PRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES . (O RDE R PRONOUNCED IN THE COURT ON 30 /05/2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 30 /05 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR