GIR Shelters & Storage Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 994/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4123 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-04-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 22-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Assessee Lawyers: PRASHANT KHANDELWAL
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI K. K.K. K.D.RANJAN D.RANJAN D.RANJAN D.RANJAN, AM , AM , AM , AM ITA NO. ITA NO. ITA NO. ITA NO.994/DEL/2011 994/DEL/2011 994/DEL/2011 994/DEL/2011 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2001 2001 2001 2001- -- -02 0202 02 M/S GIR M/S GIR M/S GIR M/S GIR SHELTERS & STORAGE SHELTERS & STORAGE SHELTERS & STORAGE SHELTERS & STORAGE PVT.LTD., PVT.LTD., PVT.LTD., PVT.LTD., C/O M/S SUBODH GUPTA & C/O M/S SUBODH GUPTA & C/O M/S SUBODH GUPTA & C/O M/S SUBODH GUPTA & ASSOCIATES, ASSOCIATES, ASSOCIATES, ASSOCIATES, CHARTERED ACCOUN CHARTERED ACCOUN CHARTERED ACCOUN CHARTERED ACCOUNTANTS, TANTS, TANTS, TANTS, 301 301 301 301- -- -302, G.K.HOUSE, 302, G.K.HOUSE, 302, G.K.HOUSE, 302, G.K.HOUSE, 187 187 187 187- -- -A, SANT NAGAR, A, SANT NAGAR, A, SANT NAGAR, A, SANT NAGAR, EAST OF KAILASH, EAST OF KAILASH, EAST OF KAILASH, EAST OF KAILASH, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 065. 110 065. 110 065. 110 065. PAN NO. PAN NO. PAN NO. PAN NO.AAACF5170F. AAACF5170F. AAACF5170F. AAACF5170F. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -12(1), 12(1), 12(1), 12(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRASHANT KHANDELWAL, CA. RESPONDENT BY : MS.MONA MOHANTY, SR.DR ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 16.11.2010 PASSED BY LEARNED CIT(A) IN THE MATTER OF AN ASSESS MENT MADE BY THE AO U/S 144/148 OF THE INCOME-TAX ACT, 1961 FOR THE AY 2001-02. 2. AT THE OUTSET, THE ASSESSEE HAS TAKEN A PRELIMIN ARY GROUND THAT CIT(A) HAS ERRED IN PASSING THE IMPUGNED ORDER EX-P ARTE WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. ITA-994/DEL/2011 2 4. IN THIS CASE, THE ASSESSMENT WAS MADE U/S 144/14 8 OF THE ACT BY THE AO VIDE ORDER DATED 19.12.2008. BEING AGGRIEVE D WITH THE AOS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT(A) ON 29.1.2009. THE ASSESSEES APPEAL HAS BEEN DISPOSED OF EX-PARTE BY THE LEARNED CIT(A) VIDE IMPUGNED ORDER DATED 16.11. 2010. IN THE ASSESSMENT ORDER, AO HAS STATED THAT ASSESSEE WAS G IVEN SUFFICIENT OPPORTUNITIES TO APPEAR BEFORE HIM AND TO FILE RETU RN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT BUT ASSESSEE HAD FAILED TO COMPLY WITH ALL THE NOTICES. THE AO FURTHER STATED THAT E VEN SOME NOTICES SENT TO THE ASSESSEE WERE RECEIVED BACK UNSERVED WITH A REMARK FROM THE POSTAL AUTHORITIES NO SUCH FIRM. IN THE ASSESSME NT ORDER, TWO ADDRESSES OF THE ASSESSEE HAVE BEEN GIVEN WHICH ARE AS UNDER:- 231, BHAIRON ENCLAVE, NEW DELHI AND R-116, IIND FLOOR, G.K.PART-I, NEW DELHI. 5. IN FORM NO.35 (FORM OF APPEAL) FILED BEFORE THE LEARNED CIT(A), THE ASSESSEE HAS GIVEN ITS ADDRESS AS UNDER:- GIR SHELTERS & STORAGE PVT.LIMITED (FORMERLY KNOWN AS F.C.S.COLD STORAGE PVT.LTD.), R-116, 2 ND FLOOR, GREATER KAILASH, NEW DELHI. 6. THE LEARNED CIT(A) WHILE PASSING THE ORDER HAS A LSO GIVEN THE SAME ADDRESS AS GIVEN BY THE ASSESSEE IN FORM NO.35 AS UNDER:- GIR SHELTERS & STORAGE PVT.LTD., R-116, 2 ND FLOOR, GREATER KAILASH PART-1, NEW DELHI. ITA-994/DEL/2011 3 7. THE LEARNED CIT(A) ISSUED VARIOUS NOTICES FIXING THE HEARING ON 16.11.2009, 2.12.2009, 6.4.2010, 27.4.2010, 21.10.2 010 AND 1.11.2010 BUT, ON THESE DATES, NOBODY FOR THE ASSES SEE HAD APPEARED BEFORE THE LEARNED CIT(A) NOR ANY ADJOURNMENT WAS S OUGHT. THE LEARNED CIT(A), THEREFORE, HAD TAKEN A VIEW THAT AS SESSEE HAD NOTHING TO SAY IN SUPPORT OF THE GROUNDS TAKEN BEFORE HIM. HE, THEREFORE, DISMISSED THE ASSESSEES APPEAL. 8. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEA RNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SINCE THE ASSESSEE DID NOT RECEIVE ANY NOTICES OF HEARING FROM THE LEARNED CIT(A), THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM A PPEARING BEFORE HIM. IT WAS THEN SUBMITTED THAT THE ORDER OF LEARN ED CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIM WITH A DIRECTION TO DECIDE THE APPEAL ON MERIT ON GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 9. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T LEARNED CIT(A) HAD GIVEN VARIOUS NOTICES TO THE ASSESSEE AT THE AD DRESSES GIVEN BY THE ASSESSEE BUT THE ASSESSEE HAS FAILED TO COMPLY WITH ANY OF THESE NOTICES. SHE, THEREFORE, SUBMITTED THAT THERE WAS A GROSS NEGLIGENCE OR INACTION ON THE PART OF THE ASSESSEE IN APPEARIN G BEFORE THE LEARNED CIT(A) TO SUPPORT ITS APPEAL. SHE FURTHER SUBMITTE D THAT THE ASSESSEE HAS EVEN FAILED TO APPEAR BEFORE THE AO AND FAILED TO PRODUCE THE NECESSARY BOOKS OF ACCOUNT FOR AOS VERIFICATION. SHE, THEREFORE, SUBMITTED THAT THE ORDER OF LEARNED CIT(A) BE CONFI RMED. 10. IT IS NOT IN DISPUTE THAT THE AO HAS PASSED THE ORDER EX-PARTE U/S 144 OF THE ACT. ON PERUSAL OF AOS ORDER, WE FIND THAT THE NOTICE ISSUED BY THE AO TO THE ASSESSEE WAS RECEIVED BACK UNSERVE D WITH A REMARK FROM THE POSTAL AUTHORITIES NO SUCH FIRM. IT MAK ES IT CLEAR THAT THE NOTICE SENT TO THE ASSESSEES ADDRESS WAS NOT DELIV ERED. THE ASSESSEE ITA-994/DEL/2011 4 HAS CHANGED THE ADDRESS FROM 231, BHAIRON ENCLAVE T O R-116, 2 ND FLOOR, GREATER KAILASH, PART-1, NEW DELHI. IT IS NOT KNOW N AS TO WHETHER ASSESSEE HAD PROPERLY INTIMATED THE CHANGE OF ADDRE SS TO THE AO. IN THE ASSESSMENT ORDER, IT IS ALSO MENTIONED THAT THE PRESENT ASSESSEE M/S GIR SHELTER & STORAGE PVT.LTD. WAS PREVIOUSLY K NOWN AS M/S FCS COLD STORAGE PVT.LTD. THEREFORE, THERE COULD BE SO ME CONFUSION AS TO THE ADDRESS AT WHICH NOTICES OF HEARING WERE SENT. SIMILARLY, THE CIT(A) HAS ALSO OBSERVED THAT THE NOTICE DATED 19.1 1.2009 FIXING THE DATE OF HEARING ON 2.12.2009 WAS RETURNED UNSERVED. WITH REGARD TO NOTICE DATED 9.4.2010 FIXING THE DATE FOR 27.4.2010 , THE LEARNED CIT(A) HAS OBSERVED THAT THIS NOTICE WAS AGAIN RETURNED UN SERVED. THE CIT(A) THEN OBSERVED THAT A FINAL NOTICE WAS ISSUED ON 22. 10.2010 FIXING THE HEARING ON 1.11.2010 AT THE ADDRESS AVAILABLE ON RE CORD. WHETHER THIS NOTICE WAS ACTUALLY SERVED UPON THE ASSESSEE OR WAS RETURNED UNSERVED IS NOT CLEAR FROM THE ORDER OF LEARNED CIT (A). IN THESE PECULIAR FACTS OF THE CASE, WE, THEREFORE, FIND THA T THE ORDERS OF AUTHORITIES BELOW BE SET ASIDE. SINCE THE ASSESSEE HAD NOT APPEARED BEFORE THE AO AND THE ASSESSMENT ORDER WAS ALSO MAD E EX-PARTE, WE FIND IT FIT AND PROPER TO RESTORE THE ASSESSMENT BA CK TO THE FILE OF THE AO FOR HIS FRESH ASSESSMENT. WE DO ACCORDINGLY. T HE AO SHALL MAKE A FRESH ASSESSMENT AS PER LAW AFTER PROVIDING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE SHALL AP PEAR BEFORE THE AO WITHIN THREE MONTHS FROM THE END OF THE MONTH IN WH ICH THIS ORDER IS RECEIVED BY THE ASSESSEE AND SHALL RECEIVE NECESSAR Y INSTRUCTIONS FROM THE AO AS TO THE DATE ON WHICH THE ASSESSMENT PROCE EDINGS WILL BE TAKEN UP FOR HEARING. WE FURTHER DIRECT THE ASSESS EE TO PRODUCE ALL BOOKS OF ACCOUNT AND OTHER DETAILS AS REQUIRED BY T HE AO SO THAT A CORRECT AND JUST ASSESSMENT AS PER LAW IS MADE BY T HE AO AFTER CONSIDERING THE ASSESSEES CONTENTIONS AND EXAMININ G THE BOOKS OF ACCOUNT AND OTHER MATERIALS. WE DIRECT ACCORDINGLY . ITA-994/DEL/2011 5 11. SINCE THE WHOLE ASSESSMENT HAS BEEN RESTORED BA CK TO THE FILE OF THE AO FOR HIS FRESH ASSESSMENT, THE OTHER GROUNDS RAISED BY THE ASSESSEE HAVE BECOME REDUNDANT AT THIS STAGE AND TH EY NEED NO ADJUDICATION BY US. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2011. SD/- SD/- (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 29.04.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ITA-994/DEL/2011 6