Deepak Choudhary, New Delhi V. ACIT, Central Circle-15, New Delhi

ITA 9048/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2709 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Appeal Filed On: 21-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: JASPAL SETHI
• Keywords: Set aside; Capital Gains
• Section: 143(3); 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.-9048/DEL/2019 (ASSESSMENT YEAR: 2017-18) SH. DEEPAK CHOUDHARY, 20-A, RAJPUR ROAD DELHI-110054 VS. ACIT CIRCLE-15, NEW DELHI. PAN NO. AAABPC9380L APPELLANT RESPONDENT ASSESSEE BY SH. JASPAL SETHI, ADVOCATE REVENUE BY MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEARING: 09.03.2021 PRONOUNCEMENT ON 09.03.2021 ORDER PER K. NARASIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 14.10.2019 IN APPEAL NO. 10168/18- 19 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVI, NEW DELHI IN THE CASE OF SHRI. DEEPAK CHOUDHARY (THE ASSESSEE) FOR THE ASSESSMENT YEAR 2017-18, ASSESSEE PREFERRED THIS APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM BANQUET HALL AND CAPITAL GAINS. FOR THE ASSESSMENT YEAR 2017-18, HE HAD FILED HIS RETURN OF INCOME ON 03.08.2017 DECLARING INCOME OF RS. 70,08,850/-. ON THE BASIS OF INFORMATION RECEIVED FROM DIG, 2 CBI, NEW DELHI ON 03.09.2016 THE CASH WAS FOUND DURING THE COURSE OF SEARCH AT THE RESIDENCE OF ASSESSEE AND HIS SON, ACTION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 WAS CONDUCTED ON 03.09.2016 AND CASH OF RS. 28,66,100/- WAS FOUND OUT OF WHICH CASH OF RS. 27,00,000/- WAS SEIZED AND THE STATEMENT OF THE ASSESSEE WAS RECORDED UNDER SECTION 131(2) OF THE ACT. BY ORDER DATED 27.12.2018 PASSED UNDER SECTION 143(3) OF THE ACT, ASSESSMENT WAS MADE AT RS. 94,08,850/- BY MAKING AN ADDITION OF RS. 24,00,000/- UNDER SECTION 68 READ WITH SECTION 115 BE OF THE ACT. 3. AGGRIEVED BY SUCH AN ADDITION, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) BUT BY RECORDING THAT THE ASSESSEE FAILED TO ENTER APPEARANCE IN SPITE OF SEVERAL NOTICES, LEARNED CIT(A) CONCLUDED THAT IN THE ABSENCE OF ANY COUNTERS, THE APPEAL IS LIABLE TO BE DISMISSED AND DISMISSED IT ACCORDINGLY IN LIMINE. HENCE THE ASSESSEE IS BEFORE US IN THIS APPEAL CONTENDING THAT THE LEARNED CIT(A) CANNOT DISMISS THE APPEAL IN LIMINE WITHOUT ADJUDICATING THE GROUNDS OF APPEAL ON MERITS AND THAT THE NOTICES SENT BY THE CIT(A) WERE NOT RECEIVED BY THE ASSESSEE. 4. IT IS CONTENDED BY THE LEARNED AR THAT THE ASSESSEE SWORE TO THE FACTS IN THE AFFIDAVIT FILED ALONGWITH THE APPEAL THAT THE NOTICES WERE SENT BY THE CIT(A) TO THE EMAIL ADDRESS OF HIS SON AND, THEREFORE, THERE WAS NO OCCASION FOR ASSESSEE TO KNOW THE SAME WHICH WERE NOT TO BE FOUND IN HIS EMAIL AND FOR NON-SERVICE OF NOTICE, THE OBSERVATIONS OF CIT(A) DO NOT MERIT CONSIDERATION. HE FURTHER SUBMITTED THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS READY TO APPEAR BEFORE THE CIT(A) AND PROSECUTE THE CASE DILIGENTLY. 3 5. THE LEARNED DR SUBMITTED THAT THE ASSESSEE MAY BE PUT TO TERMS TO ENTER APPEARANCE BEFORE THE CIT(A) AS AND WHEN THEY RECEIVE THE NOTICES TO THE EMAIL ADDRESS [e-mail], WITHOUT INSISTING FOR THE PAPER NOTICES. 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE ON THE EITHER SIDE. A BARE PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE LD. CIT(A) DID NOT REFER TO ANY MERITS OF THE CASE BUT MERELY BECAUSE OF THE ABSENCE OF THE ASSESSEE, THE APPEAL WAS DISMISSED IN LIMINE. WE, HOWEVER, ARE OF THE VIEW THAT THE ABSENCE OF ASSESSEE WILL NOT DETER THE FIRST APPELLATE AUTHORITY FROM DISPOSING OF THE APPEAL ON MERITS. IT IS AS WELL AVAILABLE TO THE LD. CIT(A) TO LOOK INTO THE PAPERS THAT ARE AVAILABLE ON RECORD AND APPRAISE THE MERITS OF THE CASE TO REACH A REASONABLE CONCLUSION DETERMINING THE JUST TAX LIABILITY OF THE ASSESSEE. LD. CIT(A) SHOULD HAVE CONSIDERED THE FACT THAT IN THE ABSENCE OF ASSESSEE ALSO THE PAPERS WILL SPEAK FOR THEMSELVES. INSTEAD OF DISMISSING THE APPEAL IN LIMINI, THE LD. CIT(A) SHOULD HAVE TAKEN LITTLE MORE EFFORT AND CARE TO DELVE DEEPER INTO THE MERITS OF THE CASE AND SHOULD HAVE RECORDED THE FOR REASONS TO DISMISS THE APPEAL. THIS EXERCISE SHOULD HAVE BEEN UNDERTAKEN BY THE LD. CIT(A) BECAUSE BEING A STATUTORY APPELLATE AUTHORITY, IT IS NOT OPEN FOR HIM TO DISMISS THE APPEAL FOR DEFAULT WHICH POWER IS NOT AVAILABLE TO HIM. 7. FURTHER, THERE IS NO MATERIAL TO CONTRADICT THE CONTENTS OF THE AFFIDAVIT OF THE ASSESSEE THAT NOTICES WERE ADDRESSED TO EMAIL ADDRESS OF HIS SON AND NOT TO THE EMAIL ADDRESS OF THE ASSESSEE. ASSESSEE DOES NOT STAND TO GAIN BY SWEARING TO SUCH AVERMENTS, IF THEY ARE FALSE, AND ON THE OTHER HAND EXPOSES HIMSELF TO THE CONSEQUENCES. 4 8. IN THESE CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE TO THE FILE OF THE LD. CIT(A) BY DIRECTING THE ASSESSEE TO FILE ALL THE MATERIAL PAPERS BEFORE THE LD. CIT(A) WITHIN 15 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER, AND THE LD. CIT(A) WILL ISSUE NOTICE TO THE ASSESSEE TO THE EMAIL ADDRESS [e-mail] AND DECIDE THE APPEAL ON MERITS. WE PLACE ON RECORD THE ASSURANCE GIVEN BY THE LEARNED AR ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE WILL NOT INSIST FOR ANY PAPER NOTICE AND WOULD COOPERATE WITH THE DISPOSAL OF THE APPEAL ON MERITS. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IMMEDIATELY AFTER CONCLUSION OF THE HEARING IN VIRTUAL MODE ON THIS THE 9 TH DAY OF MARCH, 2021. SD/- SD/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:09.03.2021 SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI