Smt. Vanvashi Bai Parate , Balaghat V. Income Tax Officer, Balaghat

ITA 11/JAB/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9571 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Assessee Lawyers: L L SHARMA
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 147

Judgement Text

I.T.A NO.11/JAB/2019 1 VANVASI BAI PARATE V. ITO (AY 2010-11) IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR SMC BENCH, JABALPUR BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 11/JAB/2019 ASSESSMENT YEAR: 2010-11 SMT. VANVASI BAI PARATE, (THROUGH L/H, SHRI K.C. PARATE), WARD NO. 27, PREM NAGAR, BALAGHAT (M.P.) (PAN: BCRPP 4730Q) VS. INCOME TAX OFFICER, BALAGHAT (M.P) (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI L.L.SHARMA, ADVOCATE RESPONDENT BY SHRI I.B. KHANDEL, DR DATE OF HEARING 08/7/2020 DATE OF PRONOUNCEMENT 08/7/2020 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JABALPUR ( CIT(A) FOR SHORT) DATED 09.7.2018, DISMISSING THE ASSESSEES APPEAL CONTEST ING HER ASSESSMENT U/S. 147 R/W S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 29.3.2014 FOR ASSESSMENT YEAR (AY) 2010-11. 2. THE ONLY ISSUE ARISING IN THIS CASE IS THE MAINT AINABILITY OF THE IMPUGNED ORDER, ASSAILED BY THE ASSESSEE PRINCIPALLY ON ACCO UNT OF LACK OF REASONABLE OPPORTUNITY OF HEARING (GD. 2); GROUND 1 BEING GENE RAL IN NATURE, NOT WARRANTING ANY SPECIFIC ADJUDICATION. THE FACTS OF THE CASE ARE SIMPLE AND ADMITTED. THE NOTICE OF HEARING (IN THE APPELLATE P ROCEEDINGS) DATED 25.6.2018 I.T.A NO.11/JAB/2019 2 VANVASI BAI PARATE V. ITO (AY 2010-11) (FOR 06.7.2018) CAME BACK UNSERVED WITH THE POSTAL REMARKS TO THE EFFECT THAT THE ASSESSEES HOUSE IS LOCKED. IN VIEW THEREOF, TH E LD. CIT(A) PROCEEDED EX PARTE THE ASSESSEE-APPELLANT, DISMISSING HER APPEAL DUE TO HER INABILITY TO SHOW AS TO HOW THE ASSESSMENT AS MADE WAS NOT CORRECT. T HE DECISION BY THE LD. CIT(A) AND HIS ORDER IS THUS NOT ON MERITS. IT IS, WITH RESPECT, SELF-CONTRADICTORY. WHEN THE NOTICE OF HEARING HAS ADMITTEDLY NOT BEEN SERVED ON THE ASSESSEE, WHERE IS THE QUESTION OF SHE PRESENTING HER CASE BE FORE HIM ? THERE IS NO WHISPER OF ANY MALA FIDES IN THE NON-SERVICE OF THE NOTICE, OR OF THE ASSESS EE DELIBERATELY AVOIDING ITS SERVICE, IN HIS ORDER. I N FACT, THE IMPUGNED ORDER, ISSUED ON 09.7.2018, COULD BE COMMUNICATED TO THE A SSESSEE (AT THE STATED ADDRESS) ONLY SEVERAL MONTHS LATER, ON 19.02.2019. SURE, THE ASSESSEES RESPONSIBILITY FOR THE SAID NON-SERVICE CANNOT BE D ENIED, BUT THE CONTINUED ABSENCE FROM HER RESIDENCE, THE STATED ADDRESS, WAS NOT, CLEARLY, WITH A VIEW TO AVOID SERVICE, BUT FOR SOME PERSONAL REASONS. THE A PPEAL BEFORE THE LD. CIT(A) WAS PREFERRED AS FAR BACK AS IN APRIL, 2014, BY HER LEGAL HEIR, SHRI K.C. PARATE, WHO COULD WELL BE RESIDING/LOCATED AT A DIFFERENT P LACE AT THE RELEVANT TIME. 3. PROPER OPPORTUNITY OF HEARING IS THE SINE QUA NON OF JUDICIAL PROCEEDINGS, THE PREMISE OF WHICH IS A DECISION ON MERITS UPON A LLOWING REASONABLE OPPORTUNITY OF BEING HEARD. FURTHER, THE FIRST APPE LLATE AUTHOIRY REPRESENTS THE FINAL OPPORTUNITY BEFORE AND ADJUDICATION BY THE RE VENUE, AND THERE ARE SERIOUS FETTERS ON THE PRODUCTION OF EVIDENCE BEFORE THE HI GHER APPELLATE FORUMS. THE IMPUGNED ORDER IS, THUS, NOT SUSTAINABLE IN LAW. TH E PURPOSE OF OBSERVING THE ASSESSEES CONDUCT IS TO DETERMINE IF ANY COST, UND ER THE FACTS AND CIRCUMSTANCES OF THE CASE, MERITS BEING IMPOSED THEREON. THE SAME , THOUGH NO DOUBT WANTING, INASMUCH AS THE ASSESSEE OUGHT TO HAVE COMMUNICATED HIS CURRENT ADDRESS, CANNOT THOUGH BE REGARDED AS EVASIVE. APPEAL HAS BE EN PREFERRED BY A LEGAL HEIR, WHO COULD HAVE STRONG REASON/S FOR KEEPING THE ASSE SSEES PLACE LOCKED FOR MONTHS. THIS, OR OTHER PERSONAL REASONS, SEEM TO HA VE BEEN RESPONSIBLE FOR THE I.T.A NO.11/JAB/2019 3 VANVASI BAI PARATE V. ITO (AY 2010-11) CONTINUED ABSENCE FROM THE STATED ADDRESS, WHICH IS THE SAME AS THAT FURNISHED IN THE RETURN OF INCOME AS WELL AS THE ASSESSMENT O RDER. THE REVENUE, WHO SHOULD INSIST ON FURNISHING OF THE EMAIL ADDRESS IN THE OFFICIAL COMMUNICATIONS, AS INDEED MENTIONED IN F/36, ALSO DID NOT MAKE ANY SERIOUS ATTEMPT TO ASCERTAIN THE ASSESSEES WHEREABOUTS, OR EVEN FOLLOW THE DUE PROCESS FOR SERVING THE NOTICE THROUGH AFFIXTURE. THE NOTICE, IN VIEW OF TH E ASSESSEES DEATH, IS LIABLE TO BE SERVED ON ALL HER LEGAL HEIRS/REPRESENTATIVES, T HE ASSESSMENT ORDER BEARING REFERENCE TO HER DAUGHTER, JYOTI ASAI. NO COST IS A CCORDINGLY IMPOSED. 4. THE LD. COUNSEL FOR THE ASSESSEE, SHRI SHARMA, A SSURED DURING HEARING OF A RESPONSIBLE AND COOPERATIVE CONDUCT (BY AND ON THE ASSESSEES BEHALF) IN THE SET ASIDE PROCEEDINGS. THE MATTER, SETTING ASIDE THE IM PUGED ORDER, IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFRESH ON M ERITS IN ACCORDANCE WITH LAW. HE SHALL FURTHER ENSURE BRINGING ON RECORD ALL THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE IN-AS-MUCH AS ALL ARE LIABLE TO B E DEEMED AS ASSESSEES. I DECIDE ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 8, 2020 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATED: 08/07/2020 AKS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SMT. VANVASI BAI PARATE, THROUGH L/H SHRI K.C. PARATE, WARD NO.27, PREM NAGAR, BALAGHAT (M.P.) 2. THE RESPONDENT: INCOME TAX OFFICER, BALAGHAT (M.P) 3. THE CONCERNED PR. CIT 4. THE CIT (A)1, JABALPUR 5. DR, ITAT 6. GUARD FILE