Assessee has right to get Adequate Opportunity of Being Heard

Sufficient opportunity has not been given by the Ld. First Appellate Authority to the assessee for substantiating its claim before the ld. CIT(A) which is not sustainable in the eyes of law and against the natural justice. Then ITAT can remit it back to the file of the Ld. CIT(A) to decide the same afresh, as per law. – ITAT, Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: ‘F’ NEW DELHI
BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER
AND
SHRI O.P. KANT, ACCOUNTANT MEMBER
I.T.A. Nos. 2496/Del/2014
Assessment Year: 2008-09

SH. RAM KRISHAN JAJOO,                                              VS.                                   ITO, WARD 22(1),
46/6, LGF, COMMUNITY CENTRE,                                                                         NEW DELHI
EAST OF KAILASH,
NEW DELHI
(PAN: AEWPJ6726L)
(ASSESSEE)                                                                                                                (RESPONDENT)

Assessee by: SH. SATYAJIT GOEL, CA
Revenue by: SH. PANKAJ VIDYARTHI, CIT(DR)
Date of Hearing on : 16/08/2016
Order Pronounced on : 05/09/2016

PER H.S. SIDHU, JM

ORDER

This appeal is filed by assessee against the order dated 27.11.2013 passed by the Ld. CIT(A), New Delhi relating to Assessment Year 2008-09 on the following grounds:-

1. That on the facts and circumstances of the case, the exparte order passed by CIT(A) is without proper and reasonable opportunity and even otherwise same is not in conformity with provisions of sec. 250(6) of the Income Tax Act, 1961.
2(i). That on the facts and circumstances of the case, the CIT(A) was not justified in confirming addition of Rs. 11,10,000/- as unexplained cash credit even though identity, ‘genuineness “and source was explained in the context of provisions of sec. 68 of the Income Tax Act, 1961.
(ii) That the lower authorities have not properly appreciated the facts of the case and evidence on record and impugned addition is on illegal and arbitrary basis.
3(i) That on the facts and circumstances of the case, the CIT(A) has erred in not accepting claim of short term capital loss amounting to Rs. 9,90,000/- even though correctness and genuineness of the claim is not in dispute.
(ii) That the disallowance of loss has been made without proper appreciation of facts and opportunity to the assessee.
(iii) That the disallowance is on illegal and arbitrary basis and same is not sustainable under the law.
4. That the orders of lower authorities are not justified on facts and same are bad in law.

2. Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.

3. Ld. Counsel of the assessee has stated that Ld. CIT(A) has not given sufficient opportunity, hence, the issues in dispute may be set aside to the file of the Ld. CIT(A) to decide the same afresh, under the law, after giving adequate opportunity of being heard.

4. On the contrary, Ld. DR opposed the request of the Ld. Counsel of the assessee.

5. We heard both the parties and perused the records. We have gone through the order passed by the revenue authorities especially the impugned order and we find that ld. CIT(A) vide para no. 1 has issued the notice to the assessee, but the assessee did not attend the proceedings. For ready reference, we are reproducing the relevant para no. 1 of the impugned order as under:-

“1. The present appeal is directed against the order u/s. 143(3) of the Act passed by ITO, Ward 22(1), New Delhi. Notice u/s. 250 of the Act, were issued to the appellant, the compliance of which is summarized as under:-

Date of issue Date of hearing fixed Remark
23.9.2013 22.10.2013 None attended
25.10.2013 07.11.2013 Application for
adjournment received.
Adjourned to
27.11.2013.
27.11.2013 None attended

6. Keeping in view of the notice issued to the assessee and the time granted by the Ld. CIT(A) to the assessee, we are of the view that sufficient opportunity has not been given by the Ld. First Appellate Authority to the assessee for substantiating its claim before the ld. CIT(A) which is not sustainable in the eyes of law and against the natural justice. Hence, we are of the view that in this case the issues in dispute needs to be remitted back to the file of the Ld. CIT(A) to decide the same afresh, as per law. Accordingly, the issues in dispute are set aside and restored back to the file of the Ld. CIT(A) and the Ld. CIT(A) is directed to consider the issues in dispute afresh after giving adequate opportunity of being heard to the assessee. Assessee is also directed to fully cooperate with the Ld. CIT(A) and did not take any unnecessary adjournment.

7. In the result, the appeal filed by the assessee stands allowed for statistical purposes.

Order pronounced in the Open Court on 05/09/2016.

                                        Sd/-                                                                                  Sd/-
                                    (O.P. KANT)                                                                     [H.S. SIDHU]
                                    ACCOUNTANT MEMBER                                               JUDICIAL MEMBER
Date 05/09/2016
“SRBHATNAGAR”
Copy forwarded to: –
1. Appellant –
2. Respondent –
3. CIT
4. CIT (A)
5. DR, ITAT

TRUE COPY

By Order,

Assistant Registrar, ITAT, Delhi Benches

Copy of Order