Smt. Upma Raghav, Moradabad V. ITO, Moradabad

ITA 1331/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4256 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: SH PIYUSH KAUSHIK
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA A. PILLAI , JM ITA NO. 1331/DEL/2017 : ASSTT. YEAR : 2008 - 09 SMT. UPMA RAGHAV, W/O LATE SH. B.S. RAGHAV , D - 29, DEEN DAYAL NAGAR, PHASE - II, MORADABAD (U.P.) VS INCOME TAX OFFICER, WARD - 2(2), MORADABAD (APPELLANT) (RESPONDENT) PAN NO. A DJPR5445C ASSESSEE BY : SH. SH. PIYUSH KAUSHIK, ADV. REVENU E BY : SH. KAUSHLENDRA TIWARI, SR. DR DATE OF HEARING : 02.01 .201 8 DATE OF PRONOUNCE MENT : 05 .01 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14.12.2016 OF LD. CIT(A) , M ORADABAD. 2 . FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 20,91,600 ON ACCOUNT OF PAYMENTS MADE IN RESPECT OF CREDIT C ARD BILLS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 1,12,00,000 ON ACCOUNT OF PAYMENTS MADE IN ACQUIRING MUTUAL FUNDS . ITA NO . 1331 /DE L/201 7 UPMA RAGHAV 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN THE LAW THE CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 2,00,000 ON ACCOUNT OF ASSUMED HOUSEHOLD EXPENSES. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM UNDERTAKING COMPLIA NCE BEFORE THE LOWER AUTHORITIES PURSUANT TO DEATH OF HER HUSBAND PUTTING HER IN A VERY DISTRESSFUL SITUATION. THAT THE APPELLANT CRAVES LEAVE TO ADD TO AND / OR AMEND, MODIFY OR WITHDRAW THE GROUNDS OUTLINED ABOVE BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3 . VIDE GROUND NO. 4, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE SUFFICIENT OPPORTUNITY NOT PROVIDED BY THE AUTHORITIES BELOW . 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE AO PASSED THE EX - PARTE ORDER U/S 148 R.W.S. 144 OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) ON 17.02.2016 AND ASSESSED THE INCOME AT RS.1,34,91,600/ - BY MAKING THE ADDITION OF RS.2,00,000/ - ON ACCOUNT OF HOUSE HOLD EXPENSES OF RS.1,12,00 ,000/ - ON ACCOUNT OF PAYMENTS FOR ACQUIRING THE UNITS OF MUTUAL FUND AN D RS.20,91,600/ - ON ACCOUNT OF PAYMENTS MADE AGAINST BILLS RAISED IN RESPECT OF A CREDIT CARD. THE AO MADE EX - PARTE ASSESSMENT SINCE THERE WAS NO ITA NO . 1331 /DE L/201 7 UPMA RAGHAV 3 COMPLIANCE MADE BY THE ASSESSEE FOR THE VARIOUS NOTICES ISSUED U/S 142(1) OF THE ACT. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE EX - PARTE ORDER AND CONFIRMED THE ADDITION MADE BY THE AO. THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) IN THE IMPUGNED ORDER READS AS UNDER: 3. I HAVE GONE THROUGH THE ASSESSMENT ORDER. IN RESPON SE TO SEVERAL NOTICES NO ONE ATTENDED THE APPEAL PROCEEDINGS EXCEPT ONCE. HOWEVER, THE AR SRI PEYUSH KANT SUBMITTED SEVERAL ADJOURNMENT LETTERS DATED 24.08.2016, 20.09.2016, 08.11.2016 AND 23.11.2016. FINALLY HE APPEARED ON BEHALF OF THE APPELLANT ONLY TO RECUSE HIMSELF OF THE CASE, ON 30.11.2016. THE CASE THUS IS BEING DECIDED ON MERIT. THE AO HAS MADE AN EXPARTE ASSESSMENT AS DURING THE ASSESSMENT PROCEEDINGS TOO NO ONE APPEARED TO OFFER ANY EXPLANATION WHAT SO EVER. THE AO HAS MADE THE FOLLOWING ADDITIO N AFTER GIVEN SEVERAL OPPORTUNITIES AND SHOW CAUSE FOR ADDITION WAS ISSUED AND WAS SERVED ON THE ASSESSEE ON 09.02.2016. AFTER THAT THE ORDER WAS PASSED. 6 . IN THE PRESENT CASE, THE LD. CIT(A) REPRODUCED THE ASSESSMENT ORDER VERBATIM AND THEREAFTER CO NFIRMED THE ADDITION S MADE BY THE AO BY OBSERVING AS UNDER: I HAVE NO OTHER ALTERNATIVE BUT TO CONFIRM THE ORDER AS PRIMA FACIE THE ORDER IS CORRECT AS IT WAS REASONABLE ON THE PART OF THE AO HAVE TO MADE THE ADDITION IN THE ITA NO . 1331 /DE L/201 7 UPMA RAGHAV 4 ABSENCE OF ANY EXPLANATION WHA T SO EVER. DURING THE APPEAL PROCEEDINGS ALSO ENOUGH OPPORTUNITIES WERE GIVEN. ON MERIT THE ADDITION MADE BY THE AO IS THUS CONFIRMED. 7 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NEITHER THE AO NOR THE LD. CIT(A) PR OVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHO WAS IN A VERY DISTRESSFUL SITUATION PURSUANT TO THE DEATH OF HER HUSBAND. HE FURTHER SUBMITTED THAT THE EARLIER COUNSEL FOR THE ASSESSEE RECUSED HIMSELF AND THE LD. CIT(A) WITHOUT PROVIDING D UE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, CONFIRMED THE ADDITION MADE BY THE AO. 8. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE NEITHER APPEARED BEFORE THE AO N OR THE LD. CIT(A) INSPITE OF VAR IOUS OPPORTUNITIES GIVEN TO HER, THEREFORE, THE ADDITIONS WERE RIGHTLY CONFIRMED BY THE LD. CIT(A). 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRE SENT CASE, IT IS NOTICED THAT THE AO PASSED THE EX - PARTE ORDER AND MADE THE VARIOUS ADDITIONS. THE LD. CIT(A) ALSO CONFIRMED THE ORDER OF THE AO WITHOUT DISCUSSING THE ISSUES RAISED BY THE ASSESSEE ON MERIT, H E HIMSELF ADMITTED THAT THE LD. COUNSEL FOR THE ASSESSEE RECUSED HIMSELF ON 30.11.2016. THEREAFTER, THE LD. CIT(A) HAD NOT GIVEN ANY OPPORTUNITY ITA NO . 1331 /DE L/201 7 UPMA RAGHAV 5 TO THE ASSESSEE TO DEFEND HER CASE. THE CONTENTION OF THE ASSESSEE THAT SHE WAS IN A VERY DISTRESSFUL SITUATION PURSUANT TO DEATH OF HER HUSBAND HAS NOT BEEN REBUTTED. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1 0 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOU NCED IN THE COURT ON 05 /01/2018 ) SD/ - SD/ - ( BEENA A. PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 /01/2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A PPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR