Smt. Manju Rohilla, Nalagarh V. ITO, Solan

ITA 1046/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68463 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 18-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Business income; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.1046 /CHD/2012 (ASSESSMENT YEAR: 2005-06) SMT.MANJU ROHILLA VS. THE INCOME TAX OFFICER, HOUSE NO.13, PHASE1, BADDI, NEW NALAGARH. DISTT. SOLAN. PAN: ADXPR5607G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURINDER BABBAR RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 22.08.2013 DATE OF PRONOUNCEMENT : 06.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX, SHIMLA DATED 01.08.2012 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT AT ALL JUSTIFIED IN DECIDING TH E APPEAL FOR NON-PROSECUTION WITHOUT GIVING A REASONA BLE OPPORTUNITY TO THE ASSESSEE FOR PRESENTING HER CASE ON MERITS. 2. THAT THE LD. CIT(A) OUGHT TO HAVE AFFORDED A REASON ABLE OPPORTUNITY TO THE ASSESSEE BEFORE DECIDING THE MATTER FOR NON-PROSECUTION ON MERITS. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS GROSSLY ERRED IN CONCURRING WITH THE LD. A.O. IN ASSESSING THE BUSINESS INCOME OF THE AS SESSEE AT RS. 4,00,000/- AS AGAINST THE RETURNED INCOME OF RS. 2,20,391/-, THUS UPHOLDING THE ADDITIO N OF RS. 1,99,609/-. 2 4. THAT THE LD. CIT(A) WHILE UPHOLDING THE ADDITION OF RS . 1,99,609/- HAS FAILED TO APPRECIATE THAT THERE IS A CALCULATION MISTAKE IN THE SAID COMPUTATION AND THE CORRECT FIGURE COMES AT RS. 1,79,609/- (RS. 4,00,000-RS. 2,20,391). 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS WHOLLY UNJUSTIFIED IN UPHOLDING THE ADDITION OF RS. 4,70,000/- WITHOUT APPRECIATING THE FACT THAT THE SAME WAS DULY EXPLAINED BEFORE THE LD . A.O. BEING AMOUNT GIVEN BY THE HUSBAND OF THE ASSES SEE DULY SUPPORTED BY BANK ENTRIES. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS WHOLLY UNJUSTIFIED IN UPHOLDING THE ADDITION OF RS. 50.000/- BEING UNSECURED LOAN RECEIV ED BY THE ASSESSEE FROM SH. AMITABH RAI. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 6,77,470/- WITHOUT VISITING THE RECO RD OF THE LD. A.O. AND WITHOUT AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HER CASE. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 3,57,000/- WITHOUT APPRECIATING THE EXPLANATION OF THE ASSESSEE AT THE TIME OF ASSESSMENT. 9. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 13,23,500/- WITHOUT AFFORDING A REA SONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HER CASE. 10. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 2,90,000/- WITHOUT APPRECIATING THE FACT THAT THE SAID AMOUNT HAS ALREADY BEEN ADDED WHILE MAKING THE ADDITION OF RS. 4,70,000/- (BEING CO NTESTED VIDE GROUND NO. 5 ABOVE). 11. THAT THE ASSESSEE CRAVES LEAVE TO ADD, AMEND OR DEL ETE ANY GROUND OF APPEAL BEFORE THE FINAL HEARING OF THE APPEAL. 3. THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IS IN GROUND NO.1. THE ASSESSEE IS AGGRIEVED BY THE ORDER PASSED BY TH E CIT (APPEALS) EX PARTE THE ASSESSEE. THE LEARNED A.R. FOR THE ASSES SEE POINTED OUT THAT IT HAS MISPLACED ITS CASE DIARY AND AS SUCH HAD DEFAUL TED IN APPEARING BEFORE THE CIT (APPEALS) AS THE SAID DATE OF HEARIN G WAS NOT KNOWN TO THE ASSESSEE IN THE ABSENCE OF CASE DIARY. 4. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T THE FIRST ROUND OF APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT (APPEALS) FOR NON- PROSECUTION AND THE CHANDIGARH BENCH OF THE TRIBUNA L VIDE ORDER DATED 3 16.4.2009 HAD REMITTED THE APPEAL BACK TO THE FILE OF THE CIT (APPEALS), SHIMLA, WHO IN TURN AFFORDED VARIOUS OPPORTUNITIES OF HEARING TO THE ASSESSEE. THE NEXT CONTENTION BY THE LEARNED D.R. FOR THE REVENUE WAS THAT THERE IS NO MERIT IN THE PRESENT APPEAL FILED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT (APP EALS), WHO HAD DECIDED THE APPEAL ON MERITS EX PARTY THE ASSESSEE, AS ASSESSEE HAD FAILED TO APPEAR BEFORE THE CIT (APPEALS). THE APPEAL WAS RESTORED BACK TO THE FILE OF THE CIT (APPEALS) BY THE CHANDIGARH BENCH O F THE TRIBUNAL VIDE ORDER DATED 16.4.2009 FOR FRESH ADJUDICATION AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE CIT (A PPEALS) FIXED THE APPEAL FOR HEARING ON 18.6.2012 VIDE NOTICE DATED 8 .6.2012. THE ASSESSEE SOUGHT ADJOURNMENT ON 8.6.2012 THROUGH REP RESENTATIVE AND THE APPEAL WAS ADJOURNED FOR 23.7.2012. ON THE APPOINT ED DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE. THE PLEA OF THE LEARNED A.R. FOR THE ASSESSEE IN THIS REGARD WAS THAT HE HAD MIS PLACED HIS CASE DIARY AND HENCE THE DEFAULT IN NON-APPEARANCE BEFORE THE CIT (APPEALS). IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE PRINCIPLES OF NATURAL JUSTICE DEMAND ANOTHER OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PRESENT THE CASE BEFORE THE CIT (APPEALS). WE REMIT THE ISSUE ON MERITS BACK TO TH E FILE OF CIT (APPEALS) TO ADJUDICATE THE SAME AFTER AFFORDING RE ASONABLE OPPORTUNITIES OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO COMPLY WITH THE NOTICE OF HEARING ISSUED BY THE CIT (APPEALS) A ND PRESENT HIS CASE BEFORE THE CIT (APPEALS). ACCORDINGLY, THE ORDER O F THE CIT (APPEALS) IS SET ASIDE TO DECIDE THE ISSUES DE-NOVO. IN VIEW OF OUR SETTING ASIDE PROCEEDINGS BACK TO THE FILE OF THE CIT (APPEALS) W E ARE NOT ADJUDICATING 4 UPON THE MERITS OF THE ISSUES RAISED BY THE ASSESSE E. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED FOR STATI STICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6 TH SEPTEMBER, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH