Sh. Ishwar Singh Grewal, Rohtak V. ITO, Rewari

ITA 950/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0217 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 30-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Assessee Lawyers: S K BANSAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 950 /DEL/201 4 (ASSESSMENT YEAR - 200 6 - 07 ) SH.ISHWAR SINGH GREWAL, C/O - S.K.BANSAL, CA, 101, KOCHAR MARKET, FIRST FLOOR, JHAJJAR ROAD, ROHTAK. PAN - AGGPG3398F (APPELLANT) VS ITO, WARD - 2, REWARI (RESPONDENT ) APPELLANT BY SH.S.K.BANSAL, CA RESPONDENT BY SH.GAGAN SOOD, SR.DR ORDER BY THE PRESENT APPEAL THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 05.12.2013 OF CIT(A), ROHTAK ON VARIOUS GROUNDS INCLUDING GROUND NO. - 1 WHICH READS AS UNDER: - 1. THAT THE LD. CIT(A), ROHTAK HAS ERRED IN LAW AS WELL AS ON FACTS IN DISMISSING THE APPEAL AS EXPARTE. 2. THE RECORD SHOWS THAT THE ASSESSEE CHALLENG ED T HE ADDITIONS BEFORE THE CIT(A) WHICH THE AO MADE IN THE RETURNED INCOME OF RS.92,110/ - WHEREIN THE ASSESSMENT WAS CONCLUDED AT RS.6,12,110/ - . A PERUSAL OF THE RECORD FURTHER SHOWS THAT THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE IN VIEW OF THE FACTS: - (A) INITIALLY A COUNSEL APPEARED AND STATED THAT HE HAD RETURNED THE APPEAL FILE BACK TO THE ASSESSEE ; (B) THEREAFTER ON THE NEXT DATE A N ADJOUR NMENT WAS MOVED WHICH WAS GRANTED ; (C) . S UBSEQUENTLY, NO APPEARANCE WAS PUT BY ANYONE. AS A RESULT OF THIS THE APPEAL WAS FINALLY DISMISSED IN LIMINE. 3. AGGRIEVED BY THIS DISMISSAL, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 4 . BOTH THE LD. SR. DR AND LD. AR WERE HEARD. LD. AR, MR.S.K. B ANSAL, CA APPEAR ING FOR THE ASSESSEE REQUEST ED THAT THE APPEAL MAY BE RESTORED TO THE FILE OF THE CIT(A) AND GAVE AN ORAL UNDERTAKING THAT HE WOULD ENSURE THAT THE ASSESSEE DATE OF HEARING 30 .0 6 .2015 DATE OF PRONOUNCEMENT 22 . 0 7 .2015 I.T.A .NO. - 950/ DEL/2014 PAGE 2 OF 3 WOULD PARTICIPATE IN THE PROCEEDINGS. IN THE FACE OF THE ORAL UNDERTAKING OF THE LD. AR, THE LD. SR.DR HAD NO OBJECTION IF THE ISSUE IS RESTORED. 4 . 1. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE NOTWITHSTANDING THE PLEADINGS OF THE PARTIES IT IS SEEN THAT EVEN OTHERWISE THE MANNER OF DECISION MAKING ADOPTED BY THE LD. CIT(A IS CONTRARY TO THE STATUTORY MANDATE. IT IS SEEN THAT THE CIT(A) HAS DISMISSED THE ASSESSEE S APPEAL ON THE FOLLOWING REASONING: - 3. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WELL KNOWN DICTUM VIGILANTIBUS, NON DORMETIBUS, JURA SUBVENIENT . IN THE CIRCUMSTANCES, PERFORCE, THE APPEAL IS DETERMINED EX - PARTE QUA THE APPELLANT. THIS CO URSE OF ACTION IS IN LINE WITH THE PRINCIPLES EXPOSITED IN CIT VS MULTIPLAN (INDIA) LTD. 38 ITD (DEL.) 320; LATE T UKOJI RAO HOLKAR VS CWT (1997) 223 ITR 480 (MP INDORE BENCH) AND CIT VS B.N.BHATTACHARGEE AND ANOTHER 118 ITR 118 ITR 461 (SC). IN 118 ITR 46 1, THE HON BLE APEX COURT HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEAL BUT EFFECTIVELY PURSUING IT . THIS VIEW HAS ALSO BEEN FOLLOWED BY THE ITAT, CHANDIGARH BENCH B IN IT(SS) A NO. - 70/CHANDI/2004 DATED 16.02.2006 IN THE CASE OF SM T. SANTOSH GUPTA W/O SHRI P.R.GUPTA, HISAR VS JCIT.SPL. RANGE, KARNAL (NOW ACIT, HISAR). 4.2. IT IS IMPERATIVE AT THIS STAGE TO EXTRACT SECTION 250(6) OF THE INCOME TAX ACT, 1961 WHICH GOVERNS THE PROCEDURE WHICH THE CIT(A) IS REQUIRED TO FOLLOW WHILE DE CIDING APPEALS. THE RELEVANT EXTRACT READS AS UNDER: - 250. (1) . (2) (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. (6A).............................................................. ..... 4. 3 . A PERUSAL OF THE ABOVE MAKES IT ABUNDANTLY CLEAR THAT THE STATUTE MANDATES THE CIT(A) TO PASS A SPEAKING ORDER ON THE POINT S AT ISSUE ; SET TING OUT THE R EASONING FOR THE CONCLUSION . T HE POWER TO DISMISS THE APPEAL IN LIMINE IS NOT VE STED IN TH E SAID AUTHORITY. 4.4 . ACCORDINGLY FOR THE REASONS GIVEN HEREIN ABOVE THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A I.T.A .NO. - 950/ DEL/2014 PAGE 3 OF 3 REASONABLE OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS GAINFULLY UTILIZED BY THE ASSESSEE BY MAKING PROPER COMPLIANCES AS FAILING THIS THE LD. CIT(A) IS AT LIBERTY TO DECIDE THE APPEAL ON MERIT AFTER PROVIDING A REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 5 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 2 N D OF JULY , 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 2 /07 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI