Mrs Anita Mishra, New Delhi V. ITO, New Delhi

ITA 1484/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3764 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 06-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKAR
• Assessee Lawyers: ARVIND MANGIA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 1484/DEL/2010 ASSESSMENT YEAR: 2005-06 MRS. ANITA MISHRA, C/O SANJAY K. PATHAK & ASSOCIATES, CA, GF 22, HANS BHAWAN1, BAHADUR SHAH, ZAFAR MARG, NEW DELHI. VS. ITO, WARD 22(4), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : ARVIND MANGIA, CA RESPONDENT BY: J.P. CHANDRAKAR, SR. DR O R D E R PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST EX- PARTE ORDER OF CIT(A) DATED 27.01.2010 FOR A.Y. 200 5-06. GROUNDS OF APPEAL READ AS UNDER: - 1. NON-RECEIPT OF NOTICES BY THE ASSESSEE SENT BY T HE OFFICE OF THE CIT(A)-XXIII, NEW DELHI. THE CHANGE OF RESIDENTIAL ADDRESS OF THE ASSESSEE W AS DULY COMMUNICATED TO THE ITO, WARD 22(4) AND DULY ACKNOW LEDGED VIDE ITS RECEIPT DT. 11.01.08. BUT NOTICED WERE ST ILL BEING SENT ON OLD ADDRESS ONLY. SO, NEITHER ASSESSEE NOR THE AUTHORIZED REPRESENTAT IVE WAS AWARE OF THE NOTICES SENT BY CIT(A)-XXIII, HENCE CO ULD NOT ATTEND 2 ITA NO. 1484/DEL/2010 PROCEEDINGS ON THE DATES FIXED FOR HEARING DUE TO W RONG DELIVERY OF NOTICES. 2. THE DEMAND IS RAISED ON THE BASIS OF AIR INFORMA TION ABOUT INVESTMENT OF RS. 10,60,000/- IN THE BONDS OF RURAL ELECTRIFICATION CORPORATION. IN THIS REGARD, WE WISH TO SUBMIT THAT THE SAID AMO UNT OF RS. 10,60,000/- INVESTED IN RURAL ELECTRIFICATION BONDS IS OUT OF 1 /4 TH SHARE OF SALE PROCEEDS OF RS. 70,00,000/- OF PROPERTY AT KANPUR. THE DETAILS ARE AS UNDER: - A) 1/4 TH SHARE OUT OF SALE PROCEEDS OF RS. 70,00,000/- RS. 17,50,000/- B) AMOUNT INVESTED IN RURAL ELECTRIFICATION BOND T O CLAIM EXEMPTION U/S 54EC RS. 10,60,000/- C) AMOUNT INVESTED BEING 1/4 TH SHARE IN THE RESIDENTIAL PROPERTY AT E-6, GREATER KAILASH ENCLAVE, PART- 1, INCLUDING COST OF RENOVATION, STAMP DUTY ETC. R S. 7,57,000/- (RS. 5,50,000 + 1,32,000 + 75,000) TOTAL EXEMPTION RS. 18,17,000/- D) CAPITAL GAIN ON TRANSACTION NIL 3. AS THE ASSESSEE IS A NON-RESIDENT INDIA, SHE IS NOT REQUIRED TO FILE INCOME TAX RETURN IN INDIA. FURTHER, DUE TO HER NON-STAY IN INDIA, SHE WAS NOT AWARE OF ANY CORRESPONDENCE/NOTICES RECEIVED FROM, INCOME TA X DEPTT. MEANWHILE, THE HONBLE CIT HAS ALREADY COMPLETED THE PROCEEDINGS E X-PARTE. SO, THE NON-COMPLIANCE OF NOTICES SENT BY OFFICE OF CIT(A)-XXIII WAS BONA FIDE AND TRANSACTION AMOUNT OF RS. 10,60,000/- HAS ALSO NOW BEEN FULLY EXPLAINED AS THE INVESTMENT IN BONDS IS EXEMPT FROM TAX U/S 54EC , HENCE THE AMOUNT IS NOT TAXABLE. 2. ON THE BASIS OF SYSTEM GENERATED INFORMATION THE AO FOUND THAT ASSESSEE HAD MADE INVESTMENT IN BONDS/DEBENTURES OF RS. 10,60,000/-. AS ASSESSEE DID NOT FILE RETURN IN RESPONSE TO NOTICES ISSUED BY THE AO AND ALSO 3 ITA NO. 1484/DEL/2010 UN-COMPLIED WITH THE NOTICES OF HEARING ISSUED THE ASSESSMENT WAS FRAMED AT RS. 10,60,000/-. THE CIT(A) HAS CONFIRMED THE ADDI TION ON THE BASIS THAT ASSESSEE DID NOT COMPLY WITH THE NOTICE ISSUED BY H IM FOR THE HEARING OF THE APPEAL. AS IT CAN BE SEEN FROM STATEMENT OF FACTS AND GROUNDS OF APPEAL REPRODUCED ABOVE. IT IS THE CASE OF THE ASSESSEE T HAT THERE WAS A CHANGE IN ADDRESS OF THE ASSESSEE WHICH WAS DULY ACKNOWLEDGED VIDE RECEIPT DATED 11.01.08 AND DESPITE THAT FACT THE NOTICES ARE BEIN G SENT ON OLD ADDRESS ONLY. IT IS FURTHER STATED THAT NEITHER ASSESSEE NOR HER AUT HORIZED REPRESENTATIVE WERE AWARE OF NOTICES SENT BY CIT(A) WHICH RESULTED IN N ON-ATTENDANCE OF THE PROCEEDINGS. THE INVESTMENT MADE IN THE BONDS REPR ESENTED THE 1/4 TH SHARE OUT OF SALE PROCEEDS OF RS. 70 LAKH. IT IS IN THE CIRCUMSTANCES, IT IS THE CASE OF THE ASSESSEE THAT THE ADDITION HAS BEEN WRONGLY MAD E AND SUSTAINED. THE ASSESSEE DID NOT GET OPPORTUNITY TO EXPLAIN THE SAM E EITHER BEFORE AO OR BEFORE CIT(A) DUE TO NON-SERVICE OF NOTICE. 3. AFTER NARRATING THE FACTS, IT WAS SUBMITTED BY L D. AR THAT THE ASSESSEE IS NOW RESIDING IN USA. DUE TO CHANGE OF ADDRESS, WHI CH WAS DULY NOTIFIED TO THE AO, ASSESSEE COULD NOT ATTEND AS THE NOTICES WERE S ENT AT OLD ADDRESS ONLY. HE SUBMITTED THAT IT WILL BE JUSTIFIED IF THE ASSES SMENT IS RESTORED TO THE FILE OF AO WITH A DIRECTION TO FRAME DENOVO ASSESSMENT. HE CONTENDED THAT SINCE HE IS REPRESENTING THE ASSESSEE, HE ASSURES THAT NECES SARY COOPERATION WILL BE EXTENDED TO THE AO, IF THE ASSESSMENT PROCEEDINGS A RE RESTORED TO THE FILE OF AO. 4 ITA NO. 1484/DEL/2010 4. ON THE OTHER HAND, RELYING ON THE ORDER OF CIT (A), IT WAS SUBMITTED BY LD. DR THAT ADDITION HAS RIGHTLY BEEN SUSTAINED BY CIT( A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE ASSESSMENT HAS BEEN FRAMED U/S 144 OF THE ACT FOR THE REASON THAT ASSESSEE DID NOT COMPLY WITH TH E NOTICES SENT TO HER. IT IS MENTIONED BY THE AO THAT THE NOTICES WERE ISSUED TO THE ASSESSEE BUT IT IS NOT STATED THAT WHETHER THE SAID NOTICES WERE EVER SERV ED UPON THE ASSESSEE. SIMILARLY, CIT(A) ALSO HAS REFERRED TO THE ISSUANCE OF NOTICE BUT IT IS NOT STATED THAT WHETHER THOSE NOTICES WERE SERVED ON ASSESSEE. AS AGAINST THAT IT IS THE CASE OF THE ASSESSEE THAT NOTICES WERE NEVER SERVED UPON HER. KEEPING IN VIEW THESE FACTS, WE ARE OF THE OPINION THAT IT IS A FIT CASE WHERE THE ASSESSMENT IS REQUIRED TO BE RESTORED BACK TO THE FILE OF AO W ITH A DIRECTION TO FRAME THE SAME DENOVO. NO NOTICE WHATSOEVER WAS SERVED UPON ASSESSEE, THEREFORE, ASSESSEE COULD NOT AVAIL THE OPPORTUNITY TO EXPLAIN HER CASE. THEREFORE, WE RESTORE THIS APPEAL TO THE FILE OF AO WITH A DIRECT ION TO FRAME THE ASSESSMENT DENOVO AFTER PROVIDING THE ASSESSEE A REASONABLE OP PORTUNITY OF HEARING. LD. AR STATED BEFORE US THAT SINCE ASSESSEE IS SETTLED AT ABROAD, HE WILL REPRESENT THE ASSESSEE AND WILL EXTEND FULL COOPERATION TO TH E DEPARTMENT FOR FRAMING THE ASSESSMENT. LOOKING INTO THE FACT THAT ASSESSMENT PROCEDURE MAY NOT BE FURTHER DELAYED, WE DIRECT LD. AR TO APPEAR BEFORE THE AO DURING THE RESTORED ASSESSMENT PROCEEDINGS ON 9 TH AUGUST, 2010. THE ORDER WAS PRONOUNCED IN THE OPEN COURT AND BOTH THE PARTIES HAVE DULY NOTED THE PRONOUNCED ORDER. 5 ITA NO. 1484/DEL/2010 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 07.06.201 0 (SHAMIM YAHYA) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER DATED: *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR