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M/s Mac Overseas Pvt. Ltd., D-193, Okhla Industrial Area, Phase-I, New Delhi 20 Vs. ITO, Ward 6(1), CR Building, New Delhi
December, 02nd 2015
           IN THE INCOME TAX APPELLATE TRIBUNAL
                 DELHI BENCH: `E' NEW DELHI

        BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER
                           AND
      SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER

                     I.T.A. Nos. 1558 & 1559/Del/2011
                  Assessment Years: 2005-06 & 2006-07

M/s Mac Overseas Pvt. Ltd.,              Vs.         ITO, Ward 6(1),
D-193, Okhla Industrial Area,                        CR Building,
Phase-I, New Delhi ­ 20                              New Delhi
(PAN: AADCM1175E)

(ASSESSEE)                                     (RESPONDENT)


                      Assessee by: Shri Sunil Mathur
                   Revenue by: Shri P. Dam Kanunjna, Sr. DR

                       Date of Hearing on                : 26/11/2015
                        Order Pronounced on:               01/12/2015


PER H.S. SIDHU, JM

                                ORDER

     These appeals are filed by assessee against the separate orders
passed by the Ld. CIT(A), New Delhi relating to Assessment Years
2005-06 & 2006-07. Since the issues involved in these appeals are
common and identical hence, they are being consolidated and
disposed of by this common order for the sake of convenience, by
dealing with assessment year 2005-06.




2.   The grounds raised in the ITA No. 1558/Del/2011 (AY 2005-06)
read as under:-

     "1.   The order is bad in law, as it has been passed in gross
           violation of principles of Natural justice.
                                                                      2

     2.    The Ld. AO in the given facts and circumstances has erred
           in treating the income of the assessee        as income from
           house property and income from other sources as against
           the business income as claimed in the return and
           consequently not allowing the various expenditure as
           claimed.

     3.    The Ld. AO has erred in not allowing the interest on loan
           taken for the renovation of property against the house
           property income.

     4.    The appellant may be      permitted to add, alter or amend
           any of the foregoing grounds of appeal."

3.    The grounds raised in the ITA No. 1559/Del/2011 (AY 2006-07)
read as under:-

     "1.   The order is bad in law, as it has been passed in gross
           violation of principles of Natural justice.

     2.    The Ld. AO in the given facts and circumstances has erred
           in treating the income of the assessee        as income from
           house property and income from other sources as against
           the business income as claimed in the return and
           consequently not allowing the various expenditure as
           claimed.

     3.    The Ld. AO has erred in not allowing the interest on loan
           taken for the renovation of property against the house
           property income.

     4.    The appellant may be      permitted to add, alter or amend
           any of the foregoing grounds of appeal."
                                                                        3

4.   The facts narrated by the revenue authorities are not disputed
by both the parties, hence, the same are not repeated here for the
sake of convenience.
5.   At the time of hearing, Ld. A.R. of the Assessee stated that the
Ld. CIT(A) has dismissed the Appeal filed by the assessee exparte
without affording sufficient opportunity to the assessee. He requested
that the issue in dispute may be set aside to the file of the Ld. CIT(A)
to decide the same afresh, under the law, after giving full opportunity
to the assessee. He further undertakes on behalf of the assessee that
he will fully cooperate in the appellate proceedings and ensured that
he will not take any unnecessary adjournment.
6.   On the other hand, Ld. Sr. DR relied upon the orders passed by
the Ld. CIT(A) and stated that the sufficient opportunity has been
given to the assessee by the Ld. CIT(A), but assessee remained non-
cooperative. Therefore, he requested that the impugned order may be
upheld.
7.   We have heard both the parties and perused the records,
especially the order of the Appellate Authority         We are of the
considered view that the request made by the Ld. Counsel for the
assessee seems to be genuine, because the impugned order passed by
the ld. CIT(A) is exparte order, without providing sufficient opportunity
to the assessee and without serving the proper notice upon the
assessee.   We find that Ld. CIT(A) has      issued the Notice    to the
assessee seven times, but on two times Ld. Counsel for the Assessee
filed an Application for adjournment which was granted by the Ld.
CIT(A). For the sake of convenience, the relevant findings at para no.
2.0 4.0 at pages 1 & 2 of the impugned order of the Ld. CIT(A)         is
reproduced as under:-
            "2.0 Against the impugned assessment order, the appellant
            has filed statement of facts and Ground of appeal along with
            Form No. 35. The appellant has been provided with
                                                                         4

           opportunities of being heard, details of which are given as
           under:-
           Sl.No.    Date     of Date of       Remarks
                     issue    of hearing
                     notice
           1         26.8.08     22.9.08       Nobody attended.
           2         25.11.08    2.12.08       Nobody attended.
           3         18.12.08    30.12.08      Nobody attended but letter
                                               dated 30.12.08 received
                                               requested for adjournment
                                               for the reason that the
                                               appellant's counsel is out
                                               of      station.      Final
                                               adjournment granted for
                                               13.1.08.
           4.                     13.1.09      Again letter dated 13.1.09
                                               received     requested for
                                               adjournment      for    the
                                               reason that the appellant's
                                               counsel is out of station.
                                               Adjournment granted for
                                               21.1.09.
           5.                     21.1.09      Nobody attended.
           6.        10.2.09      23.2.09      Nobody attended.

           3.0   The above facts show that the appellant is not interest
           to pursue its appeal filed against the assessment order
           dated 31.12.07. Even the adjournment letters received twice
           in this office on 30.12.208 and 13.1.09 stated the same
           reasons i.e. "our counsel is out of city" which shows the
           casual attitude of the appellant.    As there is no response
           from the appellant, I have no other option but to confirm the
           additions made by the AO.
           4.0   In the result, the appeal is dismissed."




7.1   After perusing the aforesaid impugned order of the Ld. CIT(A), we
find that Ld. CIT(A) has not passed a speaking order. He summarily
dismissed the appeal by holding that as there is no response from the
appellant, he has no other option but to confirm the additions made
                                                                       5

by the AO. In our considered opinion, Ld. CIT(A) has erred in this
regard. Ld. CIT(A) should have adjudicated the issue on merits. It is a
settled law that even the administrative orders have to be consistent
with the rules of 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, Ld.
CIT(A) is directed to consider the issues in dispute afresh and pass a
proper and speaking order considering the merits of the case.
Needless to add that the assessee should be given adequate
opportunity of being heard.

8.   In the result,    both the appeals filed by the assessee stands
allowed for statistical purposes.
      Order pronounced in the open court on 01/12/2015.

            Sd/-                                         Sd/-

[PRASHANT MAHARISHI]                              [H.S. SIDHU]
ACCOUNTANT MEMBER                               JUDICIAL MEMBER

Date 01/12/2015
"SRB"


Copy forwarded to: -
1.   Appellant -
2.   Respondent -
3.   CIT
4.   CIT (A)
5.   DR, ITAT
                              TRUE COPY
                                                   By Order,




                               Assistant Registrar, ITAT, Delhi Benches

 
 
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