M/s Hindustan Sports Club Ltd., New Delhi v. ITO, New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A NO. 4338/DEL/10 ASSTT. YEAR 2005-06 HINDUSTAN SPORTS CLUB LTD. B-7 PRAGATI CHAMBERS COMMERCIAL COMPLEX RANJIT NAGAR NEW DELHI. AAACH32220 VS. ITO WARD 12(4) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI V.P. BANSAL CA RESPONDENT BY: SHRI R.K. GUPTA CIT/DR ORDER PER RAJPAL YADAV JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD. CIT(A) DATED 6 TH JULY 2010 PASSED FOR ASSTT. YEAR 2005-06. IN THE FIRST GROUND OF APPEAL ASSESSEE HAS PLEADED THAT LD. CIT( A) FAIL TO GIVE PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE BECAU SE NO PROPER NOTICE ITA NO. 4338/DEL/10 ASSTT. YEAR 2005-06 2 OF HEARING WAS SERVED UPON THE ASSESSEE. IN REST O F THE GROUNDS IT HAS PLEADED THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE AO. 2. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HAV E GONE THROUGH THE RECORD CAREFULLY. ON PERUSAL OF THE LD. CIT(A) S ORDER WE FIND THAT LD. FIRST APPELLATE AUTHORITY HAS NOT DECIDED THE APPEA L OF THE ASSESSEE ON MERIT RATHER DISMISSED THE APPEAL FOR WANT OF PROS ECUTION. LD. CIT(A) AFTER PUTTING RELIANCE UPON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF TUKOJIRAO HOLKAR VS. CWT REPOR TED IN 223 ITR 480 HAS OBSERVED THAT ASSESSEE IS NOT INTERESTED IN PRO SECUTING ITS APPEAL. THEREFORE ITS APPEAL IS DISMISSED. SUB SECTION 6 O F SECTION 250 MANDATE LD. CIT(A) TO CARVE OUT POINTS FOR DETERMINATION TH EN RECORD REASONS ON SUCH POINTS AND DECIDE THE APPEAL. LD. CIT(A) WAS S UPPOSED TO CALL FOR THE ASSESSMENT RECORD PERUSED IT AND ADJUDICATE T HE ISSUES ON MERIT INSTEAD OF DISMISSING THE APPEAL FOR WANT OF PROSEC UTION. WITHOUT COMMENTING UPON THE MERITS OF THE ADDITIONS WE ARE OF THE VIEW THAT ORDER OF LD. CIT(A) IS NOT SUSTAINABLE IN THE EYES OF LAW. WE SET ASIDE THIS ORDER AND RESTORE ALL THE ISSUES TO THE FILE O F LD. CIT(A) FOR READJUDCATION. 3. BEFORE PARTING WITH THE ORDER WE WOULD LIKE TO M AKE A MENTION THAT ASSESSEE FAIL TO APPEAR BEFORE THE LD. CIT(A) ON T WO THREE DATES ITA NO. 4338/DEL/10 ASSTT. YEAR 2005-06 3 ACCORDING TO IT PROPER SERVICE OF NOTICE WAS NOT EF FECTED TO THE OFFICE OF LD. CIT(A). HOWEVER IT TRANSPIRES TO US THAT BEFOR E AO ALSO ASSESSEE FAIL TO SUBMIT THE DETAILS CALLED FOR. TO SOME EXTE NT THERE APPEARS TO BE A CONTRIBUTORY NEGLIGENCE AT THE END OF ASSESSEE ALSO . KEEPING IN MIND THIS ASPECT WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER AND MAKE AN APPLICATION FOR ADJOURNMENT OF THE NEXT DATE OF HEARING. THE AS SESSEE SHALL NOT TAKE MORE THAN THREE ADJOURNMENTS FOR ARGUING ITS APPEAL OR FOR SUBMITTING ANY DETAILS IN SUPPORT OF ITS APPEAL. THE OBSERVATI ONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF AO ON MERIT OR IT WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE / EXPLANATION OF THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1.2.2011. - SD/- [SHAMIM YAHYA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1.2.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT ITA NO. 4338/DEL/10 ASSTT. YEAR 2005-06 4 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT