SHRIMATI SUNIT KAUR W/O L/H SH. DALER SINGH, HOSHIARPUR V. INCOME TAX OFFICER, DASUYA, DASUYA

ITA 128/ASR/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4535 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J K PASSI
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO. 128/(ASR)/2018 AS SESSMENT YEAR: 2013-14 SUNIT KAUR W. & L/H OF LT. SH. DALER SINGH, H.NO. 253, WARD NO. 07, ARJUNA COLONY, DASUYA, DISTT. HOSHIARPUR [PAN: CUGPS 8314H] VS. INCOME TAX OFFICER, DASUYA, DISTT. HOSHIARPUR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. K. PASSI (ADV.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 11.05.2018 DATE OF PRONOUNCEMENT: 15.05.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JALANDHAR ( 'CIT(A)' FOR SHORT) DATED 04.01.2018, DISMISSING THE ASSESSEES APPEAL CONTES TING HER ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 ('THE AC T' HEREINAFTER) DATED 18.03.2016 FOR THE ASSESSMENT YEAR (AY) 2013-14. 2. OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE A SSESSEE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSE SSEES COUNSEL, TAKING US THROUGH PARAS 4 AND 5 OF THE IMPUGNED ORDER, THAT T HOUGH THE LD. CIT(A) WAS CONSTRAINED TO DECIDE THE ASSESSEES APPEAL EX PARTE , THIS WAS NOT DUE TO ANY FAULT ITA NO. 128/ASR/2018 (AY 2013-14) SUNIT KAUR V. ITO 2 OF THE ASSESSEE. EACH OF THE NOTICES OF HEARING REC EIVED FROM THE OFFICE OF THE FIRST APPELLATE AUTHORITY, WERE DULY FORWARDED BY HER, A WIDOW REPRESENTING HER LATE HUSBAND U/S. 159 TO HER COUNSEL, SH. J.S. BHASIN, A DVOCATE. FOR REASONS UNKNOWN, HOWEVER, HE NEITHER MADE ANY APPEARANCE NOR FILED A NY WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A), APART FROM THE SOLITARY APPEARANCE ON 19/01/2017, AND WHICH THEREFORE EXPLAINS THE MENTION OF HIS NAME IN THE C AUSE TITLE OF THE IMPUGNED ORDER. HIS CONDUCT SHOULD NOT HOWEVER OPERATE TO PREJUDICE THE ASSESSEE. FURTHER, PLACING ON RECORD A PAPER-BOOK (PB) CONTAINING 64 PAGES, HE WOULD CONTINUE THAT THOUGH THE LD. CIT(A) STATES OF HAVING DECIDED THE ASSESSE ES APPEAL ON MERITS, THERE IS NO REFERENCE IN HIS ORDER TO ANY OF THE SEVERAL DOCUME NTS FURNISHED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS, NOW FURNISHED AS A PART OF THE ASSESSEES PB. IN FACT, IF ONLY HE HAD CALLED FOR THE ASSESSMENT R ECORD, AND REFERRED THOSE DOCUMENTS, HIS DECISION WOULD SURELY BE DIFFERENT. THIS, THEN, SERIOUSLY IMPAIRS THE ADJUDICATION BY THE LD. CIT(A) ON MERITS, SO THAT T HE APPEAL BE RESTORED BACK TO HIS FILE, HE CONCLUDED. THE LD. DEPARTMENTAL REPRESENTA TIVE (DR) WOULD, IN REPLY, SUBMIT THAT THE LD. CIT(A), THOUGH CONSTRAINED FOR WANT OF ASSISTANCE FROM THE ASSESSEES SIDE, HAS NEVERTHELESS CONFIRMED THE ASS ESSMENT ON MERITS. SURELY, THE LD. CIT(A) HAD NO MEANS TO ASCERTAIN THE REASON/S F OR NON-REPRESENTATION BY OR ON BEHALF OF THE ASSESSEE. FURTHER, THE DOCUMENTS BEIN G NOW PRODUCED BY THE ASSESSEE BY WAY OF A PAPER-BOOK, STATED TO BE PRODUCED BEFOR E THE AO, STAND THEREFORE CONSIDERED BY HIM (AO). HIS ORDER HAVING BEEN CONSI DERED BY THE BY THE LD. CIT(A), THE SAID DOCUMENTS MUST THEREFORE ALSO BE R EGARDED AS HAVING BEEN CONSIDERED BY THE LD. CIT(A). HE WAS, HOWEVER, ON Q UERY, UNABLE TO SHOW THE SAID CONSIDERATION BY THE LD. CIT(A) OF THESE DOCUMENTS INASMUCH AS THERE IS NO REFERENCE THERETO IN HIS ORDER. THIS IS AS, IN THAT CASE, HE WOULD ONLY BE CONSIDERED AS HAVING REAPPRAISED THE FACTS, ISSUING INDEPENDEN T FINDING/S, IN WHICH CASE, THEN, IT WAS CLARIFIED, THE TRIBUNAL WAS OBLIGED TO CONSI DER THE ASSESSEES CASE ON MERITS. ITA NO. 128/ASR/2018 (AY 2013-14) SUNIT KAUR V. ITO 3 3. WE ARE, IN VIEW OF THE FORE-GOING, UNABLE TO HOL D THAT THERE HAS BEEN, EVEN THOUGH STATED, ANY INDEPENDENT ADJUDICATION ON MERI TS BY THE LD. CIT(A). THE LD. AR WOULD ASSURE US THAT IN CASE OF A SET ASIDE, THE RE SHALL BE PROPER ASSISTANCE AND COOPERATION FROM THE ASSESSEES SIDE IN THE PROCEED INGS BEFORE THE LD. CIT(A). WE, THEREFORE, CONSIDER IT FIT AND PROPER TO, SETTING A SIDE THE IMPUGNED ORDER, RESTORE THE PROCEEDINGS TO THE FILE OF THE LD. CIT(A) FOR ADJUD ICATION OF THE ASSESSEES APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW. FURTHER, W E THINK THAT THE INTEREST OF JUSTICE SHALL BE BETTER SERVED IF HE WERE TO CONSUL T THE ASSESSMENT RECORD. WE MAY, BEFORE PARTING WITH OUR ORDER, ADD, THAT W E ARE CONSCIOUS THAT THE TRIBUNAL CANNOT SET ASIDE THE IMPUGNED ORDER FOR FR ESH ADJUDICATION UNLESS IT RECORDS A FINDING THAT THERE HAS BEEN A DENIAL OF PROPER OP PORTUNITY TO THE ASSESSEE BY THE REVENUE, EVEN AS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V. SAS EDUCATIONAL SOCIETY [2009] 319 ITR 65 (P&H). AT THE SAME TIME, HOWEVER , IT IS ONLY WHERE THERE ARE INDEPENDENT FINDINGS BY THE FI RST APPELLATE AUTHORITY, UPON CONSIDERING THE MATERIAL ON RECORD, THAT THE DOCTRI NE OF MERGER COMES INTO PLAY, MAKING IT INCUMBENT ON THE TRIBUNAL, AS THE SECOND APPELLATE AUTHORITY, TO CONSIDER THE FINDING/S OF THE AO, AS MODIFIED BY THE FIRST A PPELLATE AUTHORITY, ON MERITS, WHICH WE HAVE FOUND AS ABSENT IN THE INSTANT CASE. IN FACT, THE TRIBUNAL, USUALLY IN SUCH CASES OF NON-AVAILMENT OF OPPORTUNITY BY THE A SSESSEE, FOR WHICH NO BONA FIDE REASONS ARE SHOWN, TO BALANCE THE INTEREST OF THE B OTH THE SIDES, RESTORES THE MATTER FOR CONSIDERATION ON MERITS UPON AWARDING COST TO T HE ASSESSEE A PROCESS WHICH ENSURES PROPER CONSIDERATION OF HIS CASE AND, THUS, THE CAUSE OF JUSTICE, WHILE AT THE SAME TIME BEING PENALIZED FOR BEING DELINQUENT. THI S IS OF COURSE WHERE THERE HAS BEEN NO CONSIDERATION ON MERITS, AS WE HAVE FOUND I N THE INSTANT CASE. HOWEVER, WE FIND NO REASON TO LEVY ANY COST; THE ASSESSEE HA VING ALREADY SUFFERED ON ACCOUNT OF NON-RESPONSE BY HER COUNSEL ON WHOM AN ASSESSE E INVARIABLY DEPENDS, BEFORE THE FIRST APPELLATE AUTHORITY. ITA NO. 128/ASR/2018 (AY 2013-14) SUNIT KAUR V. ITO 4 WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 15, 2018 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 15.05.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: SUNIT KAUR W/O L/H SH. DALER SINGH, H.NO. 253, WARD NO. 07, ARJUNA COLONY, DASUYA, DISTT. HOSHIARPUR (2) THE RESPONDENT: INCOME TAX OFFICER, DASUYA, DISTT. HOSHIARPUR (3) THE CIT(APPEALS)-1, JALANDHAR (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER