Shamindra Vilas Nagarkar, Pune V. Income-tax Officer, Ward - 3(1), Pune

ITA 1038/PUN/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1620 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 08-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Principle of natural justice; Reasonable cause
• Section: 143(3); 54F

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 1038 /P U N/201 8 / ASSESS MENT YEAR : 20 14 - 15 SHAMINDRA VILAS NAGARKAR, FLAT NO.404, IDEAL SQUARE, PAUD ROAD, NEAR GEETAI SANKUL, KOTHRUD, PUNE 411038 . / APPELLANT PAN: AAJPN0844L VS. THE INCOME TAX OFFICER, WARD 3(1), PUNE . / RESPONDENT / APPELLANT BY : SMT. DEEPA KHARE / RESPONDENT BY : S HRI M.K. VERMA / DATE OF HEARING : 1 3 . 0 8 .201 8 / DATE OF PRONOUNCEMENT: 30 . 0 8 .201 8 / ORDER PER SUSHMA CHOWLA, J M : T H E APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) , PUNE - 3 , DATED 26.04.2018 RELATING TO ASSESSMENT YEAR 2014 - 15 AGAINST ORDER PASSED UNDER SECTION 250 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - 1 . THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT FOR NON - ATTENDANCE WHEN THERE WAS SUFFICIENT CAUSE FOR HIS NON - COMPLIANCE. ITA NO. 1038 /P U N/201 8 SHAMINDRA V. NAGARKAR 2 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN NOT CONDONING THE DAY OF 6 DAYS WHEN THERE WAS SUFFICIENT AND REASONABLE CAUSE FOR DELAY. 3. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING DENIAL OF EXEMPTION UNDER SECTION 54F IN RESPECT OF INVESTMENT IN NEW HOUSE. 3. THE ASSESSEE IS IN APPEAL AGAINST DISMISSAL OF A PPEAL BY THE CIT(A) FOR NON - ATTENDANCE AND ALSO IN NOT CONDONING THE DELAY OF SIX DAYS IN FILING THE APPEAL LATE BEFORE THE CIT(A). 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME OF 14,62,390/ - . THE CASE OF ASSESSEE WAS SELECTED UNDER CASS AND ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT MAKING CERTAIN ADDITIONS IN THE HANDS OF ASSESSEE AND ASSESSING THE TOTAL INCOME AT 20,51,360/ - . THE ASSESSEE FILED AN APPEAL BE FORE THE CIT(A) WHICH WAS LATE BY SIX DAYS. THE APPEAL OF ASSESSEE WAS FIXED FOR HEARING ON DIFFERENT DATES, HOWEVER, NONE APPEARED ON BEHALF OF ASSESSEE. THE CIT(A) DISMISSED THE APPEAL OF ASSESSEE IN LIMINE WITHOUT DECIDING THE ISSUE ON MERITS. THE AP PEAL OF ASSESSEE WAS ALSO DISMISSED BY THE CIT(A) IN FILING THE APPEAL LATE BY SIX DAYS. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER OF CIT(A) ON BOTH THESE COUNTS. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THERE WAS DELAY OF SIX DAYS IN FILING THE APPEAL LATE BEFORE THE CIT(A), WHICH WAS ON ACCOUNT OF CHANGE IN RESIDENCE BY THE ASSESSEE. HE POINTED OUT THAT PAN DETAILS HAD THE ADDRESS OF RESIDENCE OF HIS PARENTS WHERE HE USED TO STAY BUT LATER ON HE S HIFTED HIS RESIDENCE AND ASSESSMENT ORDER WHICH WAS SERVED UPON THE SAID ADDRESS WAS AVAILABLE LATE TO THE ASSESSEE AND HENCE THE DELAY. IN RESPECT OF NON - ATTENDANCE BEFORE THE CIT(A), IT WAS POINTED OUT THAT THE ITA NO. 1038 /P U N/201 8 SHAMINDRA V. NAGARKAR 3 ASSESSEE DID NOT RECEIVE NOTICES AS THE SA ME WERE BEING SERVED UPON THE ADDRESS OF HIS PARENTS. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT SEVERAL NOTICES WERE GIVEN TO THE ASSESSEE AND THE ASSESSEE FAILED TO APPEAR. 7. ON PERUSAL OF RECORD AN D AFTER HEARING THE PARTIES, THE FIRST ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST DISMISSAL OF APPEAL BY THE CIT(A) IN LIMINE FOR NON - ATTENDANCE ON THE APPOINTED DATES OF HEARING. THE ASSESSEE HAS EXPLAINED THAT NON - ATTENDANCE BEFORE THE CIT(A) W AS ON ACCOUNT OF THE FACT THAT NOTICES WERE BEING SERVED AT THE ADDRESS OF HIS PARENTS WHICH WAS THE ADDRESS IN PAN DETAILS AND THOUGH THE ASSESSEE WAS EARLIER STAYING WITH HIS PARENTS BUT HAD MOVED OUT TO RENTED PLACE AND HENCE THE DEFAULT IN APPEARING BE FORE THE CIT(A). THE ASSESSEE HAS FILED AN AFFIDAVIT IN THIS REGARD, WHICH IS PLACED ON RECORD. THERE IS MERIT IN THE PLEA OF ASSESSEE AND FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE, IT IS DEEM ED FIT THAT REASONABLE OPPORTUNITY OF HEARING MAY BE PROVIDE D TO THE ASSESSEE. 8. ANOTHER ASPECT WHICH NEEDS TO BE CONSIDERED IS THAT THE CIT(A) HAS DISMISSED THE APPEAL IN LIMINE WITHOUT DECIDING THE ISSUE ON MERITS THOUGH IT IS INCUMBENT UPON HIM TO DECIDE THE ISSUE ON MERITS. ACCORDINGLY, THE ORDER OF CIT(A) I S REVERSED IN THIS REGARD. 9. BEFORE PARTING, ANOTHER ASPECT OF APPEAL BEING DISMISSED MAY ALSO BE TAKEN NOTE I.E. DELAY OF SIX DAYS IN FILING THE APPEAL LATE BEFORE THE CIT(A). THE REASON FOR FILING THE APPEAL LATE WAS MENTIONED BY THE ASSESSEE IN COLUM N ITA NO. 1038 /P U N/201 8 SHAMINDRA V. NAGARKAR 4 NO.15 OF FORM NO.35, WHICH HAS NOT BEEN ACCEPTED BY THE CIT(A). THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) IN THE FACTS AND CIRCUMSTANCES IS CONDONED AND THE CIT(A) IS DIRECTED TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY T O THE ASSESSEE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. 1 0 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 30 TH DAY OF AUGUST , 201 8 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 30 TH AUGUST , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELL ANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) , PUNE - 3 ; 4. THE PR. CIT - 2, PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDE R , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE