SHUMA KALRA, NEW DELHI V. ITO WARD - 34(3), NEW DELHI

ITA 9682/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1849 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 23-12-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Principle of natural justice; Set aside
• Section: 143(3); 54F; 234B; 263

Judgement Text

1 ITA NO. 9682/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 9682/DEL/20 19 (A.Y 2013-14) (THROUGH VIDEO CON FERENCING) SHUMA KALRA A-28, ASHOK VIHAR, PHASE-1 NEW DELHI AAIPK8142R (APPELLANT) VS ITO WARD-34(3) NEW DELHI (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31/10/2019 PASSED BY CIT(A)-12, NEW DELHI FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12, NEW DELHI HAS ERRED BOTH IN LAW AND O N FACTS IN UPHOLDING THE DETERMINATION OF TOTAL INCOME OF THE APPELLANT AT RS. 1,16,03,132/- AS AGAINST DECLARED INCOME OF RS. 11,75,710/- IN AN ORDER OF ASSESSMENT DATED 18.12.2 018 UNDER SECTION 143(3)/263 OF THE ACT. APPELLANT BY SH. LALIT MOHAN, CA RESPONDENT BY SH. S. K. CHAUDHARY, CIT(DR) DATE OF HEARING 08.12.2020 DATE OF PRONOUNCEMENT 08.12.2020 2 ITA NO. 9682/DEL/2019 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN DIS ALLOWING DEDUCTION OF RS. 97,98,170/- UNDER SECTION 54F OF T HE ACT. 2. 1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHILE CONCLUDING THAT APPELLANT HAS NOT C OMPLIED WITH PROVISIONS OF SECTION 54F OF THE ACT, HAS FAIL ED TO APPRECIATE THE FACTUAL MATRIX OF CASE OF THE APPELL ANT AND THE EXPLANATION AND EVIDENCE PLACED ON RECORD AND AS SU CH, HIS ADVERSE FINDINGS AND CONCLUSIONS ARE EITHER FACTUAL LY INCORRECT OR CONTRARY TO LAW AND HENCE NOT TENABLE. 2.2. THAT VARIOUS ADVERSE FINDINGS AND CONCLUSIONS RECORDED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND THE LEARNED ASSESSING OFFICER ARE FAC TUALLY INCORRECT AND CONTRARY TO RECORD, LEGALLY MISCONCEI VED AND UNTENABLE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN CON FIRMING AN ADDITION OF RS. 6,29,252/- REPRESENTING ALLEGED DEE MED RENTAL INCOME IN RESPECT OF UNITECH WORLD GURGAON PROPERTY UNDER SECTION 23(4)(B) OF THE ACT. 3. 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT DETAILED EX PLANATION AND REPLY FURNISHED OF THE APPELLANT AND ESTABLISH INAPPLICABILITY OF SECTION 23 OF THE ACT BEFORE THE LEARNED ASSESSING. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX 3 ITA NO. 9682/DEL/2019 (APPEALS) HAS FAILED TO APPRECIATE THAT AN APPEAL A GAINST AN ORDER PASSED ON 26.3.2018 U/S 263 OF THE ACT IS BEI NG PENDING BEFORE HONBLE INCOME TAX APPELLATE TRIBUNA L AND THEREFORE ACTION OF DISMISSAL OF APPEAL AGAINST IMP UGNED ORDER DATED 18.12.2018 PASSED U/S 143(3) OF THE ACT PASSE D IN CONSEQUENCE THEREOF, IS PREMATURE AND THUS UNTENABL E. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT AN APPEAL A GAINST AN ORDER PASSED ON 26.3.2018 U/S 263 OF THE ACT IS BEI NG PENDING BEFORE HONBLE INCOME TAX APPELLATE TRIBUNA L AND THEREFORE ACTION OF DISMISSAL OF APPEAL AGAINST IMP UGNED ORDER DATED 18.12.2018 PASSED U/S 143(3) OF THE ACT PASSE D IN CONSEQUENCE THEREOF, IS PREMATURE AND THUS UNTENABL E. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT S IN PROCEEDINGS TO DISPOSE OF THE APPEAL EXPARTEE WITHO UT GRANTING ANY FAIR AND PROPER OPPORTUNITY OF BEING H EARD TO THE APPELLANT. 6. 1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THERE WAS R EASONABLE CAUSE FOR THE APPELLANT FOR NOT CAUSING APPEARANCE ON THE DATES FIXED FOR HEARING AND AS SUCH DISPOSAL OF THE APPEAL WITHOUT GRANTING FAIR, MEANINGFUL AND PROPER OPPORT UNITY IS UNTENABLE. 6.2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT NON APPEARA NCE OF THE APPELLANT ON THE DATE OF HEARING WAS NEITHER INTENT IONAL NOR 4 ITA NO. 9682/DEL/2019 DELIBERATE AND IS NOT A CASE WHERE APPELLANT IS NOT INTERESTED IN PROSECUTING ITS APPEAL. 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDIN G THE LEVY OF INTEREST U/ S 234B AND U/S 234D OF THE ACT WHICH ARE NOT LEVIABLE ON THE FACTS OF THE APPELLANT. 3. INCOME TAX RETURN DECLARING INCOME OF RS. 11,75,710 /- WAS E-FILED BY THE ASSESSEE ON 22.07.2013. IT WAS PROCESSED U/S 14 3(1) AT A RETURNED INCOME. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS ASSES SMENT ORDER U/S 143(3) OF IT ACT, 1961 IS PASSED ON 08/06/2013 WHEREBY RETURN INCOME WAS ACCEPTED. SUBSEQUENTLY, ORDER U/S 263 IS PASSED ON 28.03.2018 ON PROPOSAL OF JCIT, RANGE- 34, NEW DELHI WHEREBY THE CASE WAS SET ASIDE HOLDING THAT THE ASSESSMENT ORDER DATED 8/6/2015 IS ERRONEOUS IN AS MUCH AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE ASSESSING OFFICER A S PER DIRECTIONS UNDER SECTION 263 VERIFIED THE DETAILS AND MADE AFRESH AS SESSMENTS. FINALLY THE ASSESSMENT ORDER WAS PASSED ON 18.12.2018 THEREBY A SSESSING THE INCOME AT RS. 1,16,03,132/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSES SEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GIV EN PROPER OPPORTUNITY OF HEARING AND PASSED THE EX-PARTE ORDER. THE LD. AR F URTHER SUBMITTED THAT THE DETAILS FURNISHED BY THE ASSESSEE DURING THE FRESH ASSESSMENT PROCEEDINGS AS PER THE DIRECTIONS GIVEN IN SECTION 263 ORDER, WERE NOT TAKEN INTO ACCOUNT BY THE ASSESSING OFFICER AND THE CIT(A) HAS ALSO NOT C ONSIDERED THIS ASPECT. THEREFORE, THE LD. AR PRAYED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE 5 ITA NO. 9682/DEL/2019 CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT T HE ORDER PASSED BY THE CIT(A) IS EX-PARTE ORDER AND THE ASSESSEE WAS NOT GIVEN PROPE R OPPORTUNITY OF HEARING. BESIDES THIS ASPECT, THE ASSESSING OFFICER HAS ALSO NOT TAKEN COGNIZANCE OF THE DETAILS WHICH WERE PRODUCED BY THE ASSESSEE DURING THE FRESH ASSESSMENT PROCEEDINGS AS PER THE DIRECTIONS OF THE ORDER UNDE R SECTION 263 OF THE INCOME TAX ACT, 1961. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION AS PER THE DIRECTIONS GIVEN UNDER SECTION 263 ORDER AND THE ASSESSING OFF ICER SHOULD MAKE PROPER ENQUIRIES AND VERIFICATIONS TO THAT EXTEND. NEEDLES S TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLE S OF NATURAL JUSTICE. THE ASSESSEE SHOULD ALSO CO-OPERATE WITH THE ASSESSMENT PROCEEDINGS WITH THE ASSESSING OFFICER. HENCE, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT AT TH E TIME OF HEARING ON 08.12.2020 IN PRESENCE OF BOTH THE PARTIES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08TH DAY OF DECEMBER, 2020 SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 08/12/2020 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 6 ITA NO. 9682/DEL/2019 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI