KAMAKHYA IMPEX PVT. LTD.,NEW DELHI vs. DCIT, NEW DELHI

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ITA 3182/DEL/2015Status: DisposedITAT Delhi03 July 2017AY 2010-115 pages
AI SummaryRemanded

What did the Tribunal hold?

The tribunal held that the CIT(A) passed an ex-parte order without providing an effective opportunity of being heard, violating the principle of natural justice. The order was set aside, and the matter was restored to the CIT(A) for fresh adjudication.

What were the facts?

The assessee's appeal before the CIT(A) was dismissed ex-parte without a hearing, leading to the confirmation of additions made by the AO. The assessee contended that no hearing notices were served, while the revenue claimed non-compliance by the assessee.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without providing an effective opportunity of hearing to the assessee, thus violating the principles of natural justice.

Which sections of the Income-tax Act were involved?

Section 143(1),Section 43(5)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘B’, NEW DELHI

Hearing: 03.07.2017Pronounced: 03.07.2017

ORDER

Per N. K. Saini, AM:

1.

This is an appeal by the assessee against the order dated 11.03.2015 of ld. CIT(A)-V, New Delhi.

2.

Following grounds have been raised in this appeal: “1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts.

2. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in passing the order without giving assessee an opportunity of being heard in violation of principle of natural justice.

2 Kamakhya Impex Pvt. Ltd.

3.

On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in passing the ex-parte order without discussing the issues on merits.

4.

On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of AO in making addition of an amount of Rs.69,76,327/- on account of loss on sale of fixed assets. 5(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of AO in disallowing an amount of Rs.18,78,705/- on account of loss on derivatives treating the same as ‘speculation loss’. (ii) That the abovesaid action of the learned CIT(A) is in clear contravention of the provisions of Section 43(5) of the Act.

6. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the addition of Rs.3,04,24,673/- made by AO on account of short term capital gain.

7.

That the appellant craves leave to add, amend or alter any of the grounds of appeal

.”

3. Vide Ground Nos. 1 to 3, the grievance of the assessee relates to the ex-parte order passed by the ld. CIT(A) without providing opportunity of being heard, in violation of principle of natural justice.

3 Kamakhya Impex Pvt. Ltd. 4. Facts of the case in brief are that the assessee was engaged in the business of trading in shares, derivatives & commodities. The return of income was e-filed on 15.01.2011 declaring loss of Rs.90,31,631/-, which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act). Later on, the case was selected for scrutiny. The AO framed the assessment at an income of Rs.3,02,47,074/- by making the various additions and disallowances.

5.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal ex-parte and sustained the additions made by the AO by observing that neither the assessee nor his Authorized Representative appeared before him.

6.

Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no notice of hearing was served upon the assessee by the ld. CIT(A). Therefore, the dismissal of the appeal without providing opportunity of being heard in limine was not justified. It was further submitted that the ld. CIT(A) had not decided the appeal on merit and simply confirmed the order passed by the AO.

4 Kamakhya Impex Pvt. Ltd. 7. In his rival submissions the ld. DR strongly supported the order of the AO and further submitted that the assessee did not comply with the various notices issued by the ld. CIT(A), so there was no alternative except to decide the appeal ex-parte.

8.

We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the ld. CIT(A) mentioned in the impugned order that several notices were issued for the hearing to the assessee but none appeared. He nowhere stated that any of the notice issued was served upon the assessee. Moreover, the ld. CIT(A) simply confirmed the order of the AO. He did not decide the issues on merit. We, therefore, considering the totality of the facts as discussed hereinabove are of the view that the impugned order deserves to be set aside, particularly when no effective opportunity of being heard was provided to the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem” and in the present case as we have already pointed out that no effective hearing was provide to the assessee by the ld. CIT(A), therefore, the impugned order is set aside and the matter is restored back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the 5 Kamakhya Impex Pvt. Ltd. assessee. We also direct the assessee to cooperate and not to seek undue or unwarranted adjournments.

9.

In the result, appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 03/07/2017)

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