Leena Rahul, Pune V. Dy.CIT, Cent. Cir. 2(3), Pune

ITA 1099/PUN/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93876 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-07-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KUMAR P SINGH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 6

Judgement Text

, IQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE !' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NOS.1099 & 1100/PN/2012 '$ % &% / ASSESSMENT YEARS : 2001-02 & 2005-06 LEENA RAHUL TUPE, 94/2, TUKARAM NAGAR, MANJARI BUDRUK, TAL. HAVELI, PUNE-412 307 PAN NO.ADIPT7765J . / APPELLANT V/S DY.CIT, CENTRAL CIRCLE-2(3), PUNE . / RESPONDENT / APPELLANT BY : SHRI MEHUL SHAH / DEPARTMENT BY : SHRI SANTOSH KUMAR P. SINGH ' / ORDER PER R.K. PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE SEPARATE ORDERS DATED 23-02-2012 OF THE CIT(A) CENT RAL, PUNE RELATING TO ASSESSMENT YEARS 2001-02 & 2004-05 RESPECTIVELY. F OR THE SAKE OF CONVENIENCE BOTH THE APPEALS WERE HEARD TOGETHER AN D ARE BEING DISPOSED OF BY THIS COMMON ORDER. / DATE OF HEARING : 06-07.2015 / DATE OF PRONOUNCEMENT: 08.07.2015 2 ITA NO.1099 & 1100/PN/2012 2. IN ITA NO.1099/PN/2012 FOR A.Y. 2001-02 THE ASSE SSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE DISALLOWA NCE OF RS.61,125/- MADE BY THE AO U/S.68 OF THE I.T.ACT. SIMILARLY, IN ITA NO.1100/PN/2012 THE ASSESSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS.50,000/- MADE BY THE AO ON ACCOUNT OF LOWER GP. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT IDENTICAL ISSUED HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF MR. RAUL RAMDAS TUPE VIDE ITA NOS. 1092 TO 1098/PN/2012 ORDER DATED 18-0 3-2012 FOR A.YRS. 2002- 02 TO 2007-08 AND IN CASE OF THE ASSESSEE, I.E. LEE NA R. TUPE IN ITA NOS. 1101 TO 1103/PN/2012 FOR A.YRS. 2004-05, 2006-07 & 2007- 08. THE TRIBUNAL WITHOUT DECIDING THE ISSUE ON MERIT HAS RESTORED TH E ISSUE TO THE FILE OF THE CIT(A) ON THE GROUND THAT THE ASSESSEE WAS NOT GIVE N REASONABLE OPPORTUNITY OF BEING HEARD. SINCE IN THE INSTANT CASE ALSO THE LD.CIT(A) HAS PASSED AN EXPARTE ORDER ON THE SAME DATE AS IN EARLIER APPEAL S WITHOUT GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, THEREFORE, IN VIEW OF THE DECISION OF THE TRIBUNAL CITED (SUPRA) THE MATT ER MAY BE SET-SIDE TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE IN THE LI GHT OF THE DIRECTION OF THE TRIBUNAL. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO FAIRLY AGREED THAT THE MATTER HAS TO GO BACK TO THE CIT(A) FOR DECIDING TH E ISSUE AFRESH IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. ON PERUSAL OF THE ORDER OF THE CIT(A) WE FIND THE ABOV E 2 APPEALS WERE ALSO DECIDED BY HIM VIDE ORDER DATED 23-02-2012 EXPARTE SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. WE FIND UNDER IDENTICAL 3 ITA NO.1099 & 1100/PN/2012 CIRCUMSTANCES IN THE CASE OF THE ASSESSEE FOR OTHER ASSESSMENT YEARS AS WELL AS IN THE CASE OF HUSBAND OF THE ASSESSEE THE LD.CIT(A ) HAS ALSO PASSED THE ORDER ON 23-02-2012 AND THE TRIBUNAL AFTER CONSIDER ING THE CHRONOLOGY OF EVENTS RESTORED THE ISSUE TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFTER GIVING REASONABLE OPPORTUNITY OF BEARING HEARD TO T HE ASSESSEE. THE RELEVANT OBSERVATION OF THE TRIBUNAL FROM PARA 18 ONWARDS RE AD AS UNDER : 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST GROUND OF APPEAL RAISED BY THE ASSESSEE IN ALL THE CAPTIONED APPEALS IS AGAINST THE DISMISSAL OF APPEAL BY THE CIT(A) WITHOU T PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD. THE LD. AUTH ORISED REPRESENTATIVE FOR THE ASSESSEE DURING THE COURSE OF HEARING HAS FURNISHE D DATE-WISE EVENTS CHART WHICH READS AS UNDER : DATE EVENT 21/12/2006 SEARCH 31/12/2008 ORDER U/S 153AR.W.S. 143(3) 30/01/2009 APPEAL FILED BEFORE LEARNED CIT(A) 31/07/2009 JURISDICTION SHIFTED FROM CIT(A) - II TO CIT(A) - IV 22/12/2009 APPEAL FIXED FOR HEARING 22/12/2009 ADJOURNMENT FILED 12/03/2010 NEXT DATE OF HEARING 12/03/2010 ADJOURNMENT FILED 19/03/2010 HEARING SCHEDULED 07/10/2010 HEARING SCHEDULED 10/02/2012 LETTER FIXING FINAL HEARING ON 21/2/2012 ISSUED 18/02/2012 LETTER DATED 10/2/2012 RECEIVED BY THE APPELLANT'S PEON 19/02/2012 SUNDAY 20/02/2012 APPELLANT WENT OUT TO NAS1K FOR RELIGIOUS ATTENDANCE 21/02/2012 APPELLANT RETURNED TO PUNE IN THE EVENING, AND LEAR NT ABOUT 23/02/2012 CIT(A) DECIDED THE APPEALS 24/02/2012 AR WENT TO CIT(A) OFFICE AND ADJOURNMENT 24/02/2012 AFFIDAVIT MADE ON LEARNING THAT APPEALS STAND DECIDED 19. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE PO INTED OUT THAT THE APPEAL WAS FIXED FOR HEARING FOR THE FIRST T IME ON 22-12-2009. HOWEVER, BECAUSE OF THE CHANGE IN THE INCUMBENT IN T HE OFFICE OF THE CIT(A) THE APPEAL WAS TAKEN UP FOR HEARING FROM 10-0 2-2012, UNDER WHICH A LETTER WAS ISSUED TO THE ASSESSEE FIXING THE HEAR ING ON 21-02- 2012. THE SAID LETTER WAS RECEIVED IN THE OFFICE OF THE ASSESSEE ON 18-02- 2012, I.E. SATURDAY OF THE MONTH. ON 20-02-2012 TH E ASSESSEE HAD TO PROCEED TO NASHIK FOR SOME RELIGIOUS ATTENDANCE AND O N 21-02-2012 WHEN HE RETURNED TO PUNE IN THE EVENING, HE LEARNT ABOUT THE HEARING FIXED IN THE CASES. THE CIT(A) DECIDED THE APPEALS O N 23-02-2012. ALTHOUGH THE AUTHORISED REPRESENTATIVE FOR THE ASSESSEE W ENT TO THE OFFICE OF CIT(A) ON 24-02-2012 AND FILED ADJOURNMEN T APPLICATION ALONG WITH AFFIDAVIT BUT THE APPEALS WERE ALREADY DECIDED BY THE CIT(A) ON 23- 02-2012 AND THE ADDITIONS MADE IN THE HANDS OF THE ASSE SSEE WERE UPHELD OBSERVING THAT THE AO HAD MADE DETAILED ANALY SIS OF THE ISSUE. 4 ITA NO.1099 & 1100/PN/2012 20. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT THE A FORESAID APPEALS HAVE BEEN DECIDED WITHOUT AFFORDING REASONAB LE OPPORTUNITY OF HEARING TO THE ASSESSEE 21. UNDER THE PROVISIONS OF SECTION 250 OF THE INCOME TAX ACT, IT IS INCUMBENT UPON THE CIT(A) TO FIX THE DATE AND PLACE FOR HEARING OF THE APPEAL AND TO GIVE NOTICE OF THE SAME TO THE ASSESSEE A ND TO THE ASSESSING OFFICER AGAINST WHOSE ORDER APPEAL WAS PREFERRED. SUB -SECTION 3 TO SECTION 250 OF THE ACT ALSO GIVES POWER TO THE CIT(A) TO ADJOURN THE HEARING OF THE APPEAL FROM TIME TO TIME. UNDER SUB- SECTION 4 OF THE SAID SECTION, THE CIT(A) CAN MAKE ANY ENQUIRY AS HE THINKS FIT OR MAY DIRECT THE AO TO MAKE ANY SUCH ENQUIRY AND REPORT THE RESU LT TO HIM, BEFORE DISPOSING OF ANY APPEAL. THE CIT(A) AT THE TIME OF H EARING OF APPEAL ALLOW THE ASSESSEE TO GO INTO ANY GROUND OF APPEAL NOT MENTIONED IN THE GROUNDS OF APPEAL, IF HE IS SATISFIED THAT THE OMISSION O F THAT GROUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASONABLE PR OVIDED UNDER SUB- SECTION 5 TO SECTION 250 OF THE ACT AND FURTHER UNDER SUB-SECTION 6 IT IS PROVIDED THAT THE ORDER OF THE CIT DISPOSING OF THE A PPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION A ND THE DECISION THEREON AND THE REASON FOR THE DECISION. FURTHER, ON DISPOSAL OF THE APPEAL, THE ORDER HAS TO BE COMMUNICATED TO THE ASSESSEE AND TO THE PRINCIPAL CHIEF COMMISSIONER OR THE CHIEF COMMISSIONER AS THE CASE MAY BE. 22. IN VIEW OF THE PROCEDURE LAID DOWN IN SECTION 25 0 OF THE ACT, IT IS INCUMBENT UPON THE CIT(A) TO FIX THE DATE AND PLACE OF HEARING OF APPEAL. UNDER THE PRINCIPLES OF NATURAL JUSTICE, IT IS PROVIDE D THAT NO PERSON SHALL BE CONDEMNED UNHEARD AND EVEN UNDER THE PROVISIONS OF SECTION 250(2) OF THE ACT, THAT THE APPELLANT EITHER IN PERSON ALON G WITH THE AUTHORISED REPRESENTATIVE SHALL HAVE THE RIGHT TO BE HEARD AT TH E HEARING OF THE APPEAL. AS THE RIGHT TO BE HEARD IS THE BASIC RIGHT C ONFERRED UPON AN ASSESSEE IN APPEAL BEFORE THE CIT(A) AND SUCH RIGHT CANN OT BE BRUSHED ASIDE BY SERVING A NOTICE AND THEREAFTER NOT PROVIDIN G REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND DISPOSING OF T HE APPEAL EXPARTE THE ASSESSEE. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IN THE PRESENT SET OF AP PEALS THE BASIC RIGHT OF HEARING TO BE PROVIDED TO THE ASSESSEE HAS NOT BEEN P ROVIDED TO THE ASSESSEE AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT T O RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) TO ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HOWEVER, IN VIEW OF THE ASSESSEE HAVING F ILED MODIFIED GROUNDS OF APPEAL BEFORE US UNDER WHICH THE ASSESSEE HAS C HALLENGED ONLY FEW OF THE ADDITIONS IN THE RESPECTIVE YEARS AS AG AINST SEVERAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE CIT( A) IN THE FIRST INSTANCE AND IN VIEW OF THE ADMISSION OF THE LD. AUTHO RISED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD, WE DIRECT THE CIT(A) ONLY TO ADJUDICATE THE GROUNDS OF APPEAL RAISED BY THE ASSESSE E VIDE MODIFIED GROUNDS OF APPEAL, WHICH WE HAVE REPRODUCED IN THE P ARAS HEREIN ABOVE. ACCORDINGLY, THE MATTER IS SET-ASIDE TO THE FILE OF TH E CIT(A) WITH THE SAID DIRECTIONS. 23. IN VIEW OF OUR SETTING ASIDE THE ISSUE BACK TO THE FILE OF THE CIT(A), WE ARE NOT ADJUDICATING THE ISSUE ON MERITS. GROUNDS OF APPEAL NO.1 RAISED BY THE ASSESSEE IN ALL THE APPEALS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO.1099 & 1100/PN/2012 6. SINCE THE FACTS IN THE INSTANT APPEALS ARE IDENT ICAL TO THE FACTS OF THE APPEALS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN C ASE AS WELL AS IN THE CASE OF HER HUSBAND CITED (SUPRA), THEREFORE, FOLLOWING THE SAME REASONING WE RESTORE BOTH THE APPEALS TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GRO UNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSES. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08-07-2015. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) ' / JUDICIAL MEMBER / ACCOUNTANT MEMBER IQ.KS PUNE ; ! DATED : 08 TH JULY, 2015. LRH'K '()'*+ , &* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # # $ ( ) , '( , IQ.KS / THE CIT(A) CENTRAL, PUNE 4. # # $ , '( , IQ.KS / THE CIT CENTRAL, PUNE 5. )*+ ,,-. , # -. , IQ.KS / DR, ITAT, B PUNE; 6. +01 2 / GUARD FILE. '$ - / BY ORDER , ) , //TRUE COPY// 345 ,6 -7 / SR. PRIVATE SECRETARY # -., IQ.KS / ITAT, PUNE