BEENA GUTGUTIA,NEW DELHI vs. ACIT, NEW DELHI

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ITA 2257/DEL/2015Status: DisposedITAT Delhi10 July 2018AY 2003-046 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that while the assessee was non-cooperative, the CIT(A) passed a non-speaking order without discussing the facts or merits. The matter was remitted back to the CIT(A) for a fresh decision after providing an adequate opportunity to be heard.

What were the facts?

The assessee's appeals for AY 2003-04 and 2006-07 were dismissed ex-parte by the CIT(A) due to non-appearance. The assessee argued that no proper opportunity of being heard was given and the order was non-speaking.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without providing a proper opportunity of being heard and without passing a speaking order.

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(4)Show list

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Income Tax Appellate Tribunal, DELHI BENCH “B”, NEW DELHI

Before: SHRI H.S. SIDHU & SHRI L.P. SAHU

ORDER PER H.S. SIDHU, JM

These Appeals are filed by the Assessee emanate out of separate Orders passed by the Ld. Commissioner of Income Tax (Appeals)-41, New Delhi pertaining to the Asstt. Years 2003-04 & 2006-07. Since the common issues are involved in these appeals, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience, by dealing with (AY 2003-04). In both the appeals, the Assessee has raised as many 07 grounds of appeal, but only argued the common issue i.e. Ld. CIT(A) has passed an exparte order upholding the levy of penalty levied by the AO and not giving proper opportunity of being heard to the assessee and passed a non-speaking order. For the sake of brevity, the detailed grounds are not repeated here. 1

2.

At the time of hearing, Ld. Counsel of the assessee reiterated the contentions raised in the grounds of appeal and requested to set aside the matter to the file of the Ld. CIT(A) to decide the same afresh, because no proper opportunity was given to the assessee and the appeal of the Assessee was dismissed on account of non-prosecution by passing a non-speaking order.

3.

Ld. DR has opposed the request of the Ld. Counsel of the assessee.

4. After hearing both the parties and perusing the impugned order, we are of the view that there is no doubt assessee remained non-cooperative before the Ld. CIT(A) and the Ld. CIT(A) has mentioned the same in his order dated 15.1.2015 vide para no. 2.0 to 5.0 at page no. 1 to 2, which are reproduced hereunder:-

“2. None put in effective appearance on behalf of the assessee for the hearings fixed on the given dates, despite issue of notices by Registered Post/Speed Post, as duly served. A brief schedule of non appearance of the assessee, is as follows:-

Response of the appellant Issue of Notice u/s Hearing of fixed 250 for 09.05.2014 05.06.2014 Request for adjournment for 20.06.2014, on 20,06.2014 none attended 18.09.2014 28.10.2014 Request for adjournment for 28.11.2014, on 18.11.2014 none attended 15.12.2014 14.01.2015 None attended

3. It is observed that despite repeated notices fixing the case for hearings in the appeal matter, the appellant has failed to appear on the given dates instead of providing details/submissions, the appellant has taken adjournments, as enumerated above. Also instead of appearing on the adjourned dates, the appellant has continued to seek further adjournments. This clearly shows that the appellant does not have any intention of making an appearance and defending its case. It is taking advantage of the revenue’s goodwill of providing opportunity to the appellant for preparing its case. It would also not be incorrect to observe that the appellant appears to be habitual in non appearance on given dates of hearings.

4.

Therefore, it gives an impression that the assessee is not interested in pressing its appeal. It is noted that it has become a fashion in present times that appellant often files appeal merely to lock the revenue or to keep the issues alive in appeal. I therefore, have no option but to dismiss the appeal preferred by the assessee. on account of non appearance. My decision is also corroborated by the decision in the following cases.

. CIT V. Multiplan (India) (P) Ltd. (1991) 38 ITD 320 (Del)

. Estate of Late Tukoji Rao Hoikar CWT (1997) 223 ITR 480 (MR)

5.

Assessee’s appeal stands dismissed.”

5. After going through the aforesaid finding of the Ld. CIT(A), we are of the view that there is no doubt that assessee remained non-cooperative before the Revenue Authorities, but we are of the opinion that Ld. CIT(A) has passed the exparte order without discussing in detail the facts and circumstances of the case and also did not deal the issue on merit and passed a non-speaking order by dismissing the appeal of the assessee on account of non- prosecution. However, it is a settled law that even an administrative order has to be speaking one.

5.1 In this regard we draw support from Hon’ble Apex Court in the case M/s Sahara India (Farms) Vs. CIT & Anr. in [2008] 300 ITR 403 wherein it has held that even “an administrative order has to be consistent with the rules of natural justice”.

5.2 We further draw support from the Apex Court decision in the case of Kapurchand Shrimal Vs. CIT, 131 ITR 451 wherein it was held that the appellate authority has jurisdiction as well as the duty to correct the errors in the proceedings under appeal and to issue of necessary, appropriate directions to the authority against whose decision appeal is preferred to dispose of the whole or any part of the matter afresh, unless forbidden from doing so by statute.

6.

In the background of the aforesaid discussions and respectfully following the precedents, as aforesaid, we remit back the issues in dispute to the files of the Ld. Commissioner of Income Tax (Appeals) to consider each and every aspects of the issues involved in the Appeal and decide the same afresh, after passing a speaking order and after considering all the evidences/documents. Needless to add that the assessee should be given adequate opportunity of being heard. However, the Assessee is directed through her Authorised Representative to appear before the concerned Ld. Commissioner of Income Tax((Appeals), New Delhi on 10.08.2018 at 10.00 AM and file all the evidences/documents etc. before him to substantiate her case. The Assessee is also directed not to take any unnecessary adjournment. Since this decision has been pronounced in the Open Court, there is no need to issue the notice.

6.1 In other appeal i.e. (AY 2006-07), the facts are identical and even the rival contention were similar, therefore, our aforesaid findings shall apply mutatis mutandis for this appeal also.

7.

In the result, both the Appeals filed by the Assessee stand allowed for statistical purposes .

Order pronounced on 10-07-2018.

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