J.S. Sharma (HUF), New Delhi V. DCIT, New Delhi

ITSSA 55/DEL/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7977 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-10-2011
• Assessment Year: misc
• Appeal Filed On: 14-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT MISHRA
• Assessee Lawyers: PUNEET THUKRAL
• Keywords: Opportunity of being heard; Block assessment
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITSS(A) NO. 55/DEL/2009 BLOCK PERIOD : 1-4-1996 TO 31-1-2003 J.S. SHARMA (HUF), VS. DCIT, CIRCLE 24(1), 1073/A-3, WARD NO. 1, NEW DELHI. MEHRAULI, NEW DELHI. PAN/GIR NO. AADHJ9716R ]APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI PUNEET THUKRAL, CA RESPONDENT BY : SHRI JAYANT MISHRA DR O R D E R PER R.P.TOLANI, J.M : THIS IS ASSESSEES APPEAL AGAINST CIT(A)S ORDER DA TED 15-5-2009 FOR THE BLOCK PERIOD ENDING 31-10-2003. FOLLOWING GROUN DS ARE RAISED: 1. THE IMPUGNED APPELLATE ORDER PASSED BY LEARNED CIT(APPEALS)-XXIII IS BAD IN LAW. 2. THE LEARNED CIT(APPEALS) IS ERRED IN CONCLUDING THAT THE ASSESSEE WAS NOT CO-OPERATIVE WITHOUT VERIFYING THE FACTS. 3. THE LEARNED CIT(APPEALS) WRONGLY INTERPRETED THE RATIO OF JUDGMENT OF THE HONOURABLE MADRAS HIGH COURT IN THE CASE OF SMT. RITU DEVI & OTHERS VS. CIT & OTHERS (2004) 271 ITR 467. 4. THE LEARNED CIT(APPEALS) NOT FOLLOWED THE RATIO OF JUDGMENT OF HONOURABLE ITAT DELHI BENCH A IN THE CA SE OF RAJENDRA KUMAR GARG VS. DCIT (2000) 67 TTJ (DEL) 34 7. 5. THE LEARNED CIT(APPEALS) WRONGLY INTERPRETED THE RATION OF JUDGMENT OF HONOURABLE ITAT SPECIAL BENCH IN THE CASE OF MANGE RAM MITTAL VS. ACIT (2007) 289 ITR (AT) 112 ( DELHI). ITA NO. 55/DEL/09 M/S J.S. SHARMA (HUF) VS. DCIT 2 2. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET CONTENDS THAT AO FRAMED THE EX PARTE ASSESSMENT IN AN UNREASONABLE M ANNER. HE SUBMITTED THAT EARLIER THE CASE WAS FIXED BEFORE AO ON 16-1-2 007 WHEN IT WAS ADJOURNED TO 22-1-2007. ON 22-1-2007 THE AOS OFFIC E WAS CLOSED DUE TO SECURITY REASONS FOR REPUBLIC DAY CELEBRATION. THER EAFTER NOTICE DATED 23-1- 2007 U/S 142(1) WAS RECEIVED FIXING THE CASE FOR 2 5-1-2007. ON 25-1-2007 ALSO THE ITO OFFICE WAS CLOSED DUE TO SECURITY REA SONS, THUS THE ASSESSEE COULD NOT GET THE OPPORTUNITY OF BEING HEARD AND TH E AO PASSED THE EX PARTE ORDER. IN FIRST APPEAL, THE CIT(A) ALSO UPHELD THE EX PARTE ASSESSMENT ORDER. 2.1. LEARNED COUNSEL SUBMITTED THAT IN CASES OF VAR IOUS OTHER FAMILY MEMBERS SUCH EX PARTE BLOCK ASSESSMENT WERE FRAMED WHERE THE ITAT SETTING ASIDE THE EX PARTE ASSESSMENT ORDERS, RESTO RED THE MATTER BACK TO THE FILE OF AO FOR ADJUDICATION AFRESH. IN SUPPORT LEAR NED COUNSEL FILED ITAT DELHI BENCH E ORDER DATED 19-4-2001 RENDERED IN I T(SS) A NOS. 102 & 103/DEL/2008 IN THE CASES OF MRS. MAMTA SHARMA & MR S. ALKA SHARMA, DAUGHTERS-IN-LAW OF THE ASSESSEE, SETTING ASIDE SUC H EXPARTE ASSESSMENTS BACK TO THE FILE OF THE AO WITH FOLLOWING OBSERVATI ONS: 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. W E FIND THAT THERE IS LACK OF OPPORTUNITY PROVIDED TO THE ASSESS EE TO EXPLAIN THEIR CASE. THERE IS A FORCE IN THE CONTENTION OF T HE ASSESSEE THAT NOTICE OF HEARING DATED 23 RD JANUARY, 2007 FIXING THE DATE OF HEARING ON 25 TH JANUARY, 2007 WAS A SHORT TIME GIVEN TO THE ASSESSEE. MOREOVER, ON THE NEXT DATE THERE WAS REPU BLIC DAY ITA NO. 55/DEL/09 M/S J.S. SHARMA (HUF) VS. DCIT 3 CELEBRATIONS. CONSIDERING ALL THESE FACTS, WE ARE O F THE OPINION THAT IT IS A CASE OF LACK OF OPPORTUNITY GIVEN TO T HE ASSESSEE AND SUCH GROUND OF THE ASSESSEE IS REQUIRED TO BE ACCEP TED. ACCORDINGLY, WE HOLD THAT THE ASSESSEE DESERVES A R EASONABLE OPPORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER . THEREFORE, WE CONSIDER IT JUST AND PROPER TO RESTORE BOTH THES E APPEALS TO THE ASSESSING OFFICER FOR PROVIDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSING OFFICER W ILL PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING AN D AFTER GIVING SUCH OPPORTUNITY OF PLACING ALL THE EVIDENCE S ON RECORD, THE ASSESSING OFFICER WILL REFRAME THE ASSESSMENT A S PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. 7. AS WE ARE RESTORING THESE APPEALS TO THE FILE OF ASSESSING OFFICER FOR RE-FRAMING THE ASSESSMENTS AS DIRECTED ABOVE, WE DO NOT EXPRESS ANY OPINION ON THE MERITS OF THE ADDITI ONS WHICH HAVE ALSO BEEN AGITATED BY THE ASSESSEE IN THE PRES ENT APPEAL AS THEY WILL BE FRESHLY DECIDED BY THE ASSESSING OFFIC ER. 2.2. LEARNED COUNSEL PLEADED THAT FACTS AND CIRCUMS TANCES BEING SIMILAR, IN ASSESSEES CASE ALSO THE ASSESSMENT MAY BE SET ASID E, RESTORED BACK TO THE FILE OF AO TO DECIDE THE SAME AFRESH ACCORDINGLY. 3. LEARNED DR IS HERD. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. SINCE THE FACTS AND C IRCUMSTANCES OF ASSESSEES CASE AND THE DAUGHTERS-IN-LAW, MENTIONED ABOVE, ARE SIMILAR AND THE EX PARTE ASSESSMENT WAS FRAMED IN SIMILAR CIRCUMSTANCES, RES PECTFULLY FOLLOWING ITAT ORDER IN THE CASES OF MRS. MAMTA SHARMA & MRS. ALKA SHARMA (SUPRA), WE SET ASIDE THE EX PARTE ASSESSMENT BACK TO THE FILE OF AO FOR DECISION AFRESH WITH SAME OBSERVATIONS. ITA NO. 55/DEL/09 M/S J.S. SHARMA (HUF) VS. DCIT 4 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 10-10-2011. SD/- SD/- (SHAMIM YAHYA ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10-10-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR