Murari Lal Sharma, Sikar V. ITO, Ward-1, Churu

ITA 11/JODH/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5738 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.11/JODH/2019 (ASSESSMENT YEAR-2009-10) SHRI MURARI LAL, S/O SHRI BIHARI LAL SHARMA, NEAAR AACHAR FACTORY, POLO GROUND, WARD NO.14, SIKAR (RAJ.) VS THE ITO, WARD -1, CHURU (APPELLANT) (RESPONDENT) PAN: AMCPS5155N REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE DATE OF HEARING 06.05.2019 DATE OF PRONOUNCEMENT 06.05.2019 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 29.10.2018 OF LD. COMMISSIONER OF INCOME TAX (APPE ALS)-3, JAIPUR 2. THE GRIEVANCE OF THE ASSESSEE VIDE GROUND NOS. 1 TO 4 RELATES TO THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) WIHTOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 2 3. THE SAID GROUNDS READ AS UNDER:- 1. THAT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - III, JAIPUR (HEREINAFTER TO BE REFERRED AS APPELLATE AUTHORITY ) HAS GROSSLY ERRED ON THE FACT S AND ON THE LAW IN REJECTING THE APPEAL EX-PARTE WITHOUT JURISDICTION OF LAW AND PASSED THE IMPUGNED ORDER W ITHOUT CONSIDERING THE FACTS OF THE CASE IN A PROPER MANNE R AS THE AASESSEE-APPELLANT IS LIVING IN SIKAR (RAJASTHAN ) AND POSTED AT LADNU IN NAGAUR DISTT. ( RAJASTHAN), AND THERE I S NO ANY RELEVANCY OF CHURU ( RAJASTHAN ), HENCE, THE IMPUGN ED APPELLATE AND ASSESSMENT BOTH ORDERS ARE AGAINST TH E FACTS OF THE CASE, PROVISIONS OF THE ACT, AND AGAINST THE PRINCI PLES OF NATURAL JUSTICE. HENCE, THE IMPUGNED APPELLATE AND ASSESSME NT BOTH ORDERS ARE LIABLE TO BE QUASHED, THEREFORE, THE SAM E MAY KINDLY BE QUASHED' 2. THAT, THE LEARNED APPELLATE AUTHORITY HAS GROSSLY E RRED ON THE FACTS AND ON THE LAW IN REJECTING THE APPEAL EX-PARTE AND PASSED THE IMPUGNED ORDER WITHOUT CONSIDERING THE F ACTS OF THE CASE IN A PROPER MANNER HENCE, THE IMPUGNED APPELLA TE ORDER IS AGAINST THE FACTS OF THE CASE AND PRINCIPLES OF NAT URAL JUSTICE. HENCE, THE IMPUGNED APPELLATE AND ASSESSMENT BOTH ORDERS ARE LIABLE TO BE QUASHED, THEREFORE, THE SAME MAY KINDL Y BE QUASHED. 3. THAT, THE LEARNED APPELLATE AUTHORITY HAS GROSSLY ERRED ON THE FACTS AND ON THE LAW ON ACCOUNT OF NON FILIN G OF APPEAL ELECTRONICALLY AS PER REQUIREMENT OF RULE 12 OF TH E INCOME TAX RULES, 1962. HOWEVER, THE REQUIREMENT TO FILE APPEA L UNDER RULE 12 IS FOR THE RETURNS RELEVANT FOR THE ASSESSMENT Y EAR 2017-18. HENCE, THE IMPUGNED ORDER IS CONTRARY TO THE PROVIS IONS OF RULE 12. THEREFORE, THE IMPUGNED APPELLATE AND ASSESSMEN T ORDER BOTH ARE LIABLE TO BE QUASHED, THE SAME MAY KINDLY QUASHED. 4. THAT, THE LEARNED APPELLATE AUTHORITY HAS GROSS LY ERRED ON THE FACTS AND ON THE LAW IN SUSTAINING THE IT I MPUGNED ASSESSMENT ORDER PASSED BY THE INCOME TAX OFFICER, WARD-L ST , 3 CHURU ( ASSESSING AUTHORITY ) WITHOUT PROVIDING REA SONABLE OPPORTUNITY OF BEING HEARD AND MAKING ADDITION OF R S. 4,00,000/- IN THE RETURNED INCOME OF RS. 3,00,616/- , HENCE, THE IMPUGNED APPELLATE AND ASSESSMENT BOTH ORDERS ARE I LLEGAL, UNJUSTIFIED, ARBITRARY, AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE, HENCE, LIABLE TO BE QUASHED, AND ADDITION OF RS. 4,00,000/- AND THE TAX THEREON AND THE TAX INCLUDIN G E. CESS IMPOSED OF RS.1,18,642/-, AND INTEREST THEREON RS. 1,13,393/- MAY KINDLY BE DELETED. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 5.6.2009 DECLARING AN INCOME OF RS. 3,00, 616/-. HOWEVER, THE ASSESSMENT WAS FRAMED AT AN INCOME OF RS. 7,06,016/ - BY MAKING THE ADDITION OF RS. 4 LACS CONSIDERING THE SAME AS ON-M ONEY OF THE ASSESSEE PAID TO THE SELLER FOR PURCHASE OF PLOT. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX-PARTE BY OBSERVING THAT THE NOTICE WAS ISSUED FOR HEARING ON 13.7.2018, ON THE SAID DATE, STAFF OF THE AUTHORIZED REPRESENTATIVE ATTENDED AND THE CASE WAS ADJOURNED TO 26.10.2018 BUT ON THE SAID DATE, NOBODY WAS PARENT AND THE CASE WAS A DJOURNED TO 13.9.2018 BUT NOBODY APPEARED ON THE SAID DATE. 6. NOW THE ASSESSEE IS IN APPEAL. 7. NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE . I HAVE CONSIDERED THE SUBMISSIONS OF THE LD. SR. DR. IN THE PRESENT C ASE, IT IS NOTICED THAT 4 THE LD. CIT(A) ALTHOUGH MENTIONED THAT THE NOTICE W AS ISSUED FOR HEARING ON 13.9.2018, HOWEVER, NOTHING IS ON RECORD TO SUBSTANTIATE THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 06.05.2019) SD/- (N.K. SAINI) VICE PRESIDENT DATED : 06.05.2019 .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR 5