Naveen Gupta, Delhi V. ACIT, New Delhi

ITSSA 1/DEL/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9473 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 03-03-2010
• Assessment Year: misc
• Appeal Filed On: 01-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JOHNSON BARA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 1/DEL/2010 BLOCK PERIOD: 01.04.1990 TO 14.02.2001 NAVEEN GUPTA, LEGAL HEIR, LT. SH. RADHEY SHYAM GUPTA, AG-30, SHALIMAR BAGH, NEW DELHI. AITPG9567B VS. ACIT CIRCLE 19(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. JOHNSON BARA, ADV. RESPONDENT BY: SH. ASHOK KUMAR PANDEY, CIT(DR) O R D E R PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER OF CIT(A) DATED 16 TH OCTOBER, 2009 FOR BLOCK PERIOD FROM 01.04.1990 TO 14.02.2001. THE ASSESSEE IN THE PRES ENT APPEAL IS AGGRIEVED BY LEVY OF PENALTY OF RS. 17,10,000/- U/S 158BFA(2) OF THE I.T. ACT, 1961 (ACT). 2. AT THE OUTSET IT MAY BE MENTIONED HERE THAT AT T HE TIME OF HEARING IT WAS BROUGHT TO OUR NOTICE THAT THE EX-PARTE ORDE R OF CIT(A) IN THE QUANTUM PROCEEDINGS TO WHICH THIS PENALTY RELATES H AS BEEN SET ASIDE BY THE TRIBUNAL TO THE FILE OF CIT(A) VIDE ITS ORDER D ATED 6 TH AUGUST, 2009 IN IT(SS)A NO. 29/DEL/09. A COPY OF SUCH ORDER WAS FI LED BEFORE US AND A 2 IT(SS)A NO. 1/DEL/2010 COPY OF THE SAME WAS ALSO GIVEN TO LD. AR. MAIN GR IEVANCE OF THE ASSESSEE IN THE QUANTUM APPEAL WAS THAT CIT(A) ERRE D IN PASSING EX- PARTE ORDER WITHOUT APPRECIATING THE FACT THAT ASSE SSEE COULD NOT APPEAR DURING THE ASSESSMENT PROCEEDINGS AND APPELLATE PRO CEEDINGS BECAUSE OF THE DEMISE OF THE DECEASED ASSESSEE. TAKING INT O CONSIDERATION SUCH FACT TRIBUNAL HAS RESTORED THE QUANTUM OF CIT(A) AS PER FOLLOWING OBSERVATIONS: - FROM THESE OBSERVATIONS OF THE CIT(A), IT APPEARS THAT HE HAS REFIXED THE CASES FOR HEARINGS ON 8.12. 05, 3.1.06 AND 30.1.06, BUT THERE WAS NO COMPLIANCE TO THE APP ELLATE PROCEEDINGS. HERE, WE NOTICE THAT FROM THESE OBSER VATIONS OF CIT(A), IT IS NOT CLEAR WHEN THIS CASE WAS REFIX ED IT WAS REFIXED BY ISSUING A NOTICE OF HEARING FOR THESE DA TES. IT IS ALSO NOT CLEAR WHETHER FOR THESE DATES THE ASSESSEE HAS SOUGHT ADJOURNMENT OR NOT AND WHETHER THESE NOTICES WERE SERVED UPON THE ASSESSEE. IN THESE CIRCUMSTANCES I T CAN BE DEDUCED THAT WITHOUT AFFORDING REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE, THE CIT(A) HAS DISPOSE D OFF THIS APPEAL EX-PARTE WHICH DEPRIVED THE ASSESSEE FR OM HIS LEGAL RIGHT OF BEING HEARD BEFORE DISPOSING OF THE APPEAL. IN THESE CIRCUMSTANCES AND IN THE FACTS AS EXPLAINED A BOVE, WE ARE OF THE OPINION THAT IN ORDER TO MEET BOTH ENDS OF JUSTICE, IT WOULD BE APPROPRIATE FOR US TO SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE ENTIRE ISSUES UNDER CONSIDERATION B EFORE US TO HIS FILE TO DECIDE THE SAME ON MERITS AFTER AFFO RDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORD ER ACCORDINGLY. WITH THESE OBSERVATIONS, THE ORDER OF CIT(A) STANDS SET ASIDE FOR COMPLIANCE WITH THE OBSERVATIO NS MADE HEREINABOVE. IN VIEW OF OUR FINDING RECORDED HEREI N ABOVE, WE DO NOT CONSIDER IT NECESSARY TO DECIDE THE OTHER GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS. 3 IT(SS)A NO. 1/DEL/2010 IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 3. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE RESTORE THE PRESENT APPEAL RELATING TO PENALTY ALSO TO THE FILE OF CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFTER DE CIDING THE QUANTUM AS PER DIRECTIONS GIVEN BY TRIBUNAL IN AFOREMENTIONED ORDER DATED 6 TH AUGUST, 2009. WE DIRECT ACCORDINGLY. 4. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3.3.2010 (R.C. SHARMA) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER DATED: 3.3.2010 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR