Sh. Ramesh Chand, New Delhi v. ITO, Narnaul

ITA 4266/DEL/2009 | 2003-2004
Pronouncement Date: 24-11-2011 | Result: Allowed

Appeal Details

RSA Number 426620114 RSA 2009
Assessee PAN AAVPC6510A
Bench Delhi
Appeal Number ITA 4266/DEL/2009
Duration Of Justice 2 year(s) 19 day(s)
Appellant Sh. Ramesh Chand, New Delhi
Respondent ITO, Narnaul
Appeal Type Income Tax Appeal
Pronouncement Date 24-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 24-11-2011
Date Of Final Hearing 24-11-2011
Next Hearing Date 24-11-2011
Assessment Year 2003-2004
Appeal Filed On 05-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI C.L. SETHI JUDICIAL MEMBER I.T. A. NOS.1729/DEL/2006 3154/DEL/2008 4265 & 4266/DEL/2009 ASSESSMENT YEARS : 2001-02 2002-03 & 2003-04 SH. RAMESH CHAND PROP. INCOME-TAX OFFICER M/S. RAMESH CHAND PREM VS. WARD-2/1 NARNAUL. CHAND NEW MANDI NARNAUL. PAN: AAVPC6510A (APPELLANT) (RESPONDENT ) APPELLANT BY : SHRI ASHWANI TANEJA CA & SHRI TARUN ADVOCATES. RESPONDENT BY : SHRI JAYANT MISHRA CIT-DR. O R D E R PER BENCH: ITA NO.1729/DEL/2006 AND ITA NO.4265/DEL/2009 FILED BY THE ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS D ATED 10.03.2006 AND 18.08.2009 PASSED BY THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) IN THE MATTER OF AN ASSESSMENT MADE BY THE ASSESSING O FFICER UNDER SEC. 147/143(3) OF THE INCOME-TAX ACT 1961 (THE ACT) FO R THE ASSESSMENT YEARS 2001-02 AND 2002-03 RESPECTIVELY. 2 2. ITA NOS.3154/DEL/2008 AND 4266/DEL/2009 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMISSIONER OF INCOME-TAX (AP PEALS)S ORDERS DATED 12.08.2008 AND 18.08.2009 PASSED IN THE MATTER OF A PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SEC. 271(1)(C)OF THE INCOME -TAX ACT 1961 (THE ACT) FOR THE ASSESSMENT YEARS 2001-02 AND 2003-04 RESPEC TIVELY. 3. WE SHALL FIRST TAKE APPEALS BEING ITA NO.1729/DE L/2006 AND 4265/DEL/2009 ARISING FROM THE ASSESSMENT ORDERS MA DE BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEARS 2001-02 AND 2002-0 3 RESPECTIVELY. IN THESE TWO APPEALS THE ASSESSEE HAS TAKEN ONE COMMO N GROUND THAT THE LEARNED CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT G IVING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT AFFORDING AD EQUATE OPPORTUNITY OF CROSS-EXAMINATION OF THE PERSONS WHOSE TESTIMONY WA S RELIED UPON. IN THIS RESPECT THE ASSESSEE HAS SUBMITTED BEFORE US TWO A FFIDAVITS SWORN BY THE ASSESSEE HIMSELF AND THE ASSESSEES AUTHORIZED REPR ESENTATIVE SHRI L.R. SINGH WHO HAD APPEARED BEFORE THE LEARNED CIT(A) D URING THE COURSE OF APPELLATE PROCEEDINGS FOR THE ASSESSMENT YEAR 2001- 02. IN THESE AFFIDAVITS IT HAS BEEN STATED THAT ON 27.02.2006 WHEN APPEAL WAS FIXED FOR HEARING THE ASSESSEES AUTHORIZED REPRESENTATIVE SENT A WRITTEN REPLY THROUGH A MESSENGER WHICH WAS GIVEN TO THE CLERK CONCERNED IN THE OFFICE OF THE CIT(A) ROHTAK. HOWEVER THE LEARNED CIT(A) IN HIS ORDER AS STATED THAT ON 3 27.02.2006 NONE FOR THE ASSESSEE ATTENDED PROCEEDIN GS AND THEREFORE HE DECIDED TO DISPOSE OF THE APPEAL ON THE BASIS OF FA CTS ON RECORD OF THE ASSESSING OFFICER AS WELL AS THE RECORDS BEFORE HIM . 4. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE LEARNED CIT(A) AND THEREFORE THE CIT(A) WAS VERY MUCH JUSTIFIED IN DISPOSING THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL RECORD. ON PERUSAL OF THE AFFIDAVIT OF THE ASSESSEE WE FIND T HAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM APPEARING BEFORE THE LEARNED CIT(A) ON 27.02.2006 WHEN APPEAL FOR THE ASSESSMENT YEAR 2001 -02 WAS FINALLY FIXED FOR HEARING. WE FURTHER FIND THAT THE LEARNED CIT( A) HAS OBTAINED VARIOUS REMAND REPORTS FROM THE ASSESSING OFFICER ON VARIOU S ISSUES WHICH NEED TO BE EXAMINED AND CONSIDERED AFTER PROVIDING REASONAB LE OPPORTUNITY TO THE ASSESSEE TO HAVE HIS SAY. TO MEET THE ENDS OF JUST ICE AND KEEPING IN VIEW THAT VARIOUS POINTS RAISED BY THE ASSESSEE BEFORE T HE LEARNED CIT(A) MAY BE DECIDED AFTER HEARING THE ASSESSEE AND AFTER CONSID ERING ALL THE RELEVANT MATERIALS AND EVIDENCES AVAILABLE ON RECORD WE FIN D IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) FOR H IS FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER LAW. 4 THE LEARNED CIT(A) SHALL ALSO PROVIDE OPPORTUNITY T O THE ASSESSING OFFICER TO EXAMINE AND VERIFY ANY EVIDENCES OR MATERIALS OR PAPERS THAT MAY BE RELIED UPON BY THE ASSESSEE BEFORE HIM. 6. IN THE ASSESSMENT YEAR 2002-03 THE LEARNED CIT( A) HAS DECIDED THE APPEAL EX PARTE AND DISMISSED THE ASSESSEES APPEAL SUMMARILY BY OBSERVING AS UNDER:- 2. IN RESPONSE TO NOTICE UNDER SECTION 250 SH. N. C. GARG C.A. ATTENDED THE PROCEEDINGS. THIS APPEAL HAS BE EN FIXED FOUR TIMES FOR 6.6.2008 28.8.2008 8.10.2008 3.11.2008 AND 24.11.2008. THE APPELLANT HAS BEEN SEEKING ADJOURN MENT. ON 3.11.2008 SH. N.C. GARG C.A. SOUGHT ADJOURNMENT ON THE GROUND THAT HE WAS TO TAKE INSPECTION OF THE ASSESS MENT RECORD ADJOURNMENT WAS ALLOWED FOR 24.11.2008 AND A DIRECT ION WAS GIVEN TO THE APPELLANT TO GET THE RECORD INSPECTED ON 5.11.2008 THE ASSESSING OFFICER WAS ALSO INFORMED OF THE AFOR ESAID. THE APPELLANT HAD NOT DONE INSPECTION OF THE RECORD EVE N TILL DATE I.E. 17.8.2009. THE AR OF THE APPELLANT HAS NOT SU BMITTED ANYTHING AS TO WHY THE RECORD WAS NOT INSPECTED TIL L DATE AND THAT IN SPITE OF THE FACT THAT TIME FOR THIS WAS GI VEN AS ON 5.11.2008. FROM THE AFORESAID THE UNDERSIGNED HAS GOT UNMISTAKEN BELIEF THAT IT DOES NOT HAVE ANYTHING TO STATE IN SUPPORT OF ITS GROUNDS OF APPEAL AND THAT THE ORDER OF THE ASSESSING OFFICER PASSED AFTER DISCUSSING THE ISSUE S IN DETAIL DESERVES TO BE CONFIRMED. THEREFORE THE ADDITIONS M ADE BY THE ASSESSING OFFICER ARE CONFIRMED AND THE GROUNDS OF APPEAL ARE DISMISSED. 7. ON PERUSAL OF THE LEARNED CIT(A)S ORDER AS EXTR ACTED ABOVE IT IS CLEAR THAT THE CIT(A) HAS NOT DECIDED THE VARIOUS GROUNDS ON THEIR MERITS AFTER CONSIDERING THE MATERIAL ON RECORD. WE THEREFORE RESTORE THIS APPEAL ALSO TO THE FILE OF THE LEARNED CIT(A) FOR HIS DECISION ON MERITS AFTER PROVIDING 5 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE ASSESSING OFFICER. 8. NOW. WE SHALL TAKE APPEAL ITA NO.3154/DEL/2008 P ERTAINING TO THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER UNDER SEC. 271(1)(C ) OF THE ACT FOR THE ASSESSMENT YEAR 2001-02. 9. SINCE THE APPELLATE ORDER IN THE QUANTUM APPEAL HAS BEEN RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR HIS FRES H ADJUDICATION VIDE THIS COMMON ORDER THE ISSUE REGARDING THE PENALTY LEVIA BLE UNDER SEC. 271(1)(C) IS ALSO BEING RESTORED TO THE FILE OF THE LEARNED C IT(A) FOR HIS FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE AO. 10. ITA NO.4266/DEL/2009 IS AGAINST THE LEARNED CIT (A)S ORDER DATED 18.08.2009 PASSED IN THE MATTER OF PENALTY LEVIED B Y THE AO U/S 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR 2003-04. 11. THE APPEAL FILED BY THE ASSESSEE AGAINST PENALT Y ORDER PASSED BY THE AO U/S 271(1)(C) HAS BEEN DISMISSED BY THE LEARNED CIT(A) AS BELATED ONE. THE LEARNED CIT(A) HAS OBSERVED THAT THE DEMAND NOT ICE WAS SERVED UPON THE ASSESSEE ON 13.03.2008 AND THE APPEAL HAS BEEN FILED ON 19.05.2008 I.E. BEYOND THE PERIOD OF 30 DAYS FROM THE DATE OF RECEI PT OF THE DEMAND NOTICE. THE LEARNED CIT(A) HAS STATED THAT NO APPLICATION F OR CONDONATION OF DELAY 6 WAS SUBMITTED BY THE ASSESSEE. TO MEET THE ENDS OF JUSTICE AND FOR PROPER ADJUDICATION OF THE MATTER WE FIND IT FIT AND PROP ER TO SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THIS MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION AND FOR CONSIDERATION OF REASONS FOR DELAY IN FILING THE APPEAL BEFORE HIM. THE ASSESSEE SHALL BE UNDER OBLIGATION TO EXPLAIN THE REASON FOR DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A ) BY GIVING SUFFICIENT AND REASONABLE CAUSE. THE LEARNED CIT(A) SHALL DECIDE THE APPEAL AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE AO. 12. IN THE RESULT ALL THESE FOUR APPEALS FILED BY THE ASSESSEE ARE TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 13. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER THE HEARING WAS OVER ON 24 TH NOVEMBER 2011. SD/- SD/- (G.D. AGRAWAL) (C.L. SETHI) VICE PRESIDENT JUDICIAL MEMBER DATED: 24 TH NOVEMBER 2011 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR ITAT.