TIKONAINFINET PVT LTD.,NEW DELHI vs. DCIT CIRCLE-25(2), NEW DELHI
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Income Tax Appellate Tribunal, DELHI BENCH, ‘H’: NEW DELHI
Before: SMT. DIVA SINGH & DR. B.R.R. KUMAR
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘H’: NEW DELHI
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER
ITA Nos.5237 & 8912/DEL/2019) [Assessment Year: 2013-14]
M/s Tikona Infinet Pvt. The Joint Commissioner of Income Limited, Tax, Corpora, 3rd Floor, LBS Marg, Vs Range-25, Bhandup (West), First Floor, C.R. Building, Mumbai-400078 New Delhi-110002 PAN-AAACM6427C Assessee Revenue
Assessee by Sh. Jay Shankar Jha, Employee Revenue by Sh. Rajesh Kumar Dhanesta, Sr. DR
Date of Hearing 03.10.2022 Date of Pronouncement 27.10.2022
ORDER PER DIVA SINGH, JM,
The present appeals have been filed by the assessee wherein the
correctness of the separate orders dated 18.03.2019 of Ld. CIT(A)-09, and
order dated 27.09.2019 of Ld. CIT(A)-28, New Delhi, pertaining to 2013-
14 assessment year is assailed. By the appeals, the assessee assails both
the actions of the CIT(A) in sustaining the quantum addition as well
sustaining the penalty imposed u/s 271(1)(c) of the Act.
Taking up the order passed in the quantum appeal, it is seen that
ITA No.5237/Del/2019, the assessee has raised the following grounds:-
“1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deciding the appeal ex- parte.
2 ITA No.5237 & 8912/Del/2019
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the disallowance of Rs.9,50,000/- being the provision of audit fees payable, invoking provisions of section 40(a) (ia) of the Income Tax Act, 1961.
On the acts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the disallowance of expenditure of Rs.10,57,338/- being the amount pertaining to TIL provision.”
At the time of hearing, no one was present on behalf of the
assessee. The appeal was passed over and adjournment application was
moved seeking time. Considering the record, the appeal was passed over.
In the second round, some office employee was present requesting
for time. The said request was rejected. It is seen that the impugned
order has been passed ex-parte qua the assessee. The office employee
submitted that the assessee has never received any notice sent to its
Delhi office. It was submitted that possibly the notices never reached as
the assessee had shifted his head office to Mumbai. Looking at the record,
it is seen that the address available in the Form No.36 bears out this fact.
Accordingly, considering the record, in the interests of substantial justice,
it is deemed appropriate to set-aside the impugned order in order to afford
the assessee an opportunity of being heard. Admittedly as per record, the
assessee has remained unpresented. A perusal of the impugned order
shows that the address available to the Ld. CIT(A) for issuance of notices
etc. was as under:-
“M/s Tikona Infinet Ltd. 225, 3rd Floor, Phase-3, Okhla Industrial Estate, New Delhi-110020”
3 ITA No.5237 & 8912/Del/2019
4.1. However, in Form No.36 in the column of appellant’s address, made
available to the ITAT, the following address of the assessee is made
available.:
“M/s Tikona Infinet Pvt. Limited, Corpora, 3rd Floor, LBS Marg, Bhandup (West), Mumbai-400078”
In view thereof and in the interests of justice, the impugned order is
set-aside and the issue is restored back to the file of the Ld. CIT(A) with a
direction to pass a speaking order in accordance with law after giving the
assessee a reasonable opportunity of being heard. While so directing, we
hold that ideally the assessee should have made efforts to keep the First
Appellate Authority informed of the change of address by filing an
amended Form No.35. Accordingly, due care and attention be exercised
in future. It is further directed that the assessee in its own interests
participates in the proceedings fully and fairly and not abuse the trust
reposed. Accordingly, ITA No.5237/Del/2019 is allowed for statistical
purposes.
In ITA No.8912/Del/2019, the assessee has challenged the penalty
imposed by the AO u/s 271(1)(c), which was affirmed in appeal by the Ld.
CIT(A). However, since, the quantum appeal on which the penalty
imposed is itself influx. Accordingly, in the interests of justice, the
penalty appeal is also set-aside and the issue is restored back to the file of
the Ld. CIT(A) with a direction to pass a speaking order in accordance
with law after giving the assessee a reasonable opportunity of being
heard.
4 ITA No.5237 & 8912/Del/2019
In the result, both appeals of the assessee are allowed for statistical
purposes only.
Order pronounced in the open court at the time of hearing itself i.e.
on 27th October, 2022.
Sd/-Sd/- Sd/- Sd/- [DR B.R.R.KUMAR] [DIVA SINGH] ACCOUNTANT MEMBER JUDICIAL MEMBER Delhi; 27.10.2022. f{x~{tÜ? f{x~{tÜ? f{x~{tÜ? f{x~{tÜ? Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi
Draft dictated 03.10.2022 03.10.2022 Draft placed before author Approved Draft comes to the Sr.PS/PS Order signed and pronounced on File sent to the Bench Clerk Date of uploading on the website Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order.
