Sandhya Agarwal, New Delhi V. ITO, New Delhi

ITA 1863/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3791 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Assessee Lawyers: RIDHI KARAN AGGARWAL
• Keywords: Opportunity of being heard; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA, VP AND SHRI A.D.JAI N, JM ITA NO.1863/DEL/2010 ASSESSMENT YEAR : 2007-08 SMT.SANDHYA AGARWAL, B-9, WEST PATEL NAGAR, NEW DELHI 110 008. PAN NO.AAEPA0344H. VS. INCOME TAX OFFICER, WARD-6(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RIDHI KARAN AGGARWAL, CA. RESPONDENT BY : SHRI KISHORE B., DR. ORDER PER A.D.JAIN, JM : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LEA RNED CIT(A), NEW DELHI, DATED 10.3.2010. 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSE E :- 1. THAT THE LEARNED ASSESSING OFFICER HAS ERRED ON FACTS AND IN LAW IN COMPLETING THE ASSESSMENT AT AN INCOME OF RS .3,52,917/- AS AGAINST INCOME OF RS.3,02,917/- (INCLUDING SURRENDE R INCOME OF RS.1,50,000/-) DECLARED BY THE APPELLANT. 2. THE ASSESSING OFFICER HAS WITHOUT APPLYING HIS M IND AND WITHOUT UNDERSTANDING THE FACTS OF THE CASE ADDED T HE AMOUNT OF RS.2,00,000/- AS AGAINST VOLUNTARY SURRENDER ON ACC OUNT OF HOUSEHOLD DRAWING OF RS.1,50,000/-, WHICH WAS IN AD DITION TO THE ACTUAL HOUSEHOLD WITHDRAWAL OF RS.1,90,248/-, WHICH WERE SUFFICIENT ENOUGH FOR A SMALL FAMILY AND HUSBAND ALSO HAVING H IS OWN SOURCE OF INCOME. 3. THE ADDITION MADE BY THE ASSESSING OFFICER ON AC COUNT OF LOW HOUSEHOLD WITHDRAWAL IS A MERE GUESS WORK, WITH OUT ANY EVIDENCE TOTALLY ON ARBITRARY AND WHIMSICAL GROUND. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING AN ADDITION OF RS.2,00,000/-. ITA-1863/DEL/2010 2 4. THE ASSESSING OFFICER HAS NOT APPLIED SPECIAL RA TE OF TAX @ 10% ON STCG OF RS.2,118/- BUT APPLIED THE NORMAL RA TE OF TAX. 5. THE ASSESSING OFFICER HAS ACTED UNDER TOTAL IGNO RANCE AND HAS NOT GIVEN CREDIT OF TDS OF RS.6,782/- ON THE INTERE ST INCOME. 6. THAT THE LEARNED CIT APPEAL HAS DISMISSED THE AP PEAL DUE TO NON APPEARANCE AS NOTICE FOR HEARING WERE RECEIVED AFTER THE DUE DATES AND NOTICE FOR THE LATEST DATE OF HEARING I.E . 2 ND MARCH, 2010 WAS RECEIVED ON THE SAME DAY, WHICH WERE THE REASON S FOR NON APPEARANCE. THIS IS AGAINST THE PRINCIPLES OF NATU RAL JUSTICE AND NOT GIVING AN OPPORTUNITY OF BEING HEARD. 3. THE COMMISSIONER (APPEALS), IT IS SEEN, HAS DISM ISSED THE ASSESSEES APPEAL EX-PARTE QUA THE ASSESSEE. IT HAS BEEN OBSE RVED BY THE LEARNED CIT(A), INTER-ALIA , THAT :- 3.0 THE APPEAL WAS FIXED AS FOLLOWS:- S.NO. DATE OF NOTICE DATE OF HEARING REMARK S 1. 9.2.2010 16.2.2010 NONE ATTENDED. 2. 17.2.2010 23.2.2010 -DO- 3. 24.2.2010 2.3.2010 -DO- 3.1 THE ABOVE DETAILS ARE POINTER TOWARDS THE FACT THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL AS ON EACH OF THE DATES ON WHICH THE CASE WAS FIXED FOR HEARING, NEIT HER THE APPELLANT ATTEND THE HEARING NOR FILED ANY APPLICATION SEEKIN G ADJOURNMENT. IN THESE CIRCUMSTANCES, I HAVE NO OTHER OPTION EXCEPT TO DECIDE THE APPEAL ON THE FACTS STATED IN THE IMPUGNED ASSESSME NT ORDER. 3.3 NON PURSUING OF THE APPEAL IS A CLEAR INDICATIO N THAT THE APPELLANT DOES NOT HAVE ANY MATERIAL EVIDENCE IN IT S POSSESSION TO CHALLENGE THE DECISION OF THE AO. IN VIEW OF ABOVE CIRCUMSTANCES, I REJECT THE APPEAL FILED BY THE APPELLANT AGAINST TH E IMPUGNED ASSESSMENT ORDER. 4. APROPOS THE ABOVE OBSERVATIONS OF THE LEARNED CI T(A), THE ASSESSEE, IN HER WRITTEN SUBMISSIONS FILED BEFORE US, HAS STATED THA T :- ITA-1863/DEL/2010 3 4. LEARNED CIT(A) HAS DISMISSED THE APPEAL DUE TO NON APPEARANCE AND STATED THAT NON PURSUING OF APPEAL IS A CLEAR INDICATION THAT THE APPELLANT DOES NOT HAVE ANY MAT ERIAL EVIDENCE. HOWEVER, UNLIKE MENTIONED IN THE ORDER, THE ASSESSE E DID NOT RECEIVE THE FIRST NOTICE DATED 9.2.2010. REGARDING THE SECOND AND THIRD NOTICE, IT IS SUBMIT TED THAT DUE TO HOLI FESTIVAL ON MAY 01, 2010, THE NOTICES WERE DEL IVERED TO THE ASSESSEE ON MAY 02, 2010, I.E. THE DATE OF HEARING ITSELF. ON RECEIPT OF THESE NOTICES, THE ASSESSEE AND AR MADE SEVERAL VISITS TO THE OFFICE OF CIT(A) BUT COULD NOT MEET HER AS SHE WAS BUSY IN HEARINGS. EVENTUALLY ON MAY 18, 2010 THE ASSESSEE HAD SENT A LETTER THROUGH SPEED POST NARRATING THE ABOVE MENTIONED FACTS AND REQUESTING FOR THE FRESH DATE OF HEARING. (COPY ATTACHED AS ANNEXU RE 3). 5. ALONGWITH THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS FILED A COPY OF HER AFORESAID LETTER DATED 18.3.2010. ALSO APPENDED IS A COPY OF THE POSTAL RECEIPT WITH REGARD TO THE AFORESAID LETTER HAVING BEEN SEN T TO THE CIT(A)-IX, LAXMI NAGAR, DELHI. 6. IT APPEARS THAT THE AFORESAID LETTER DATED 18.3. 2010 NEVER REACHED THE LEARNED CIT(A). 7. FROM THE AFORESAID FACTS, IT IS EVIDENT THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PUTTING IN APPEARANCE BEFORE THE LEARNED CIT(A). 8. BE THAT AS IT MAY, A PERUSAL OF THE IMPUGNED ORD ER SHOWS THAT THE MERITS OF THE ASSESSEES APPEAL BEFORE THE CIT(A) HAVE NEITHE R BEEN DISCUSSED, NOR DECIDED BY THE CIT(A). 9. IN VIEW OF THE ABOVE, IN THE INTEREST OF JUSTICE , WE DEEM IT APPROPRIATE TO REMIT THIS APPEAL TO THE CIT(A), TO BE DECIDED AFRE SH IN ACCORDANCE WITH LAW BY RECORDING REASONED FINDINGS ON THE MERITS OF THE CA SE. THE ASSESSEE, FOR THIS ITA-1863/DEL/2010 4 PURPOSE, SHALL BE AFFORDED DUE OPPORTUNITY OF HEARI NG. THE ASSESSEE, NO DOUBT, SHALL COOPERATE WITH THE LEARNED CIT(A). 10. RESULTANTLY, FOR STATISTICAL PURPOSES, THE APPE AL OF THE ASSESSEE IS TREATED AS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 28 TH JUNE, 2010. SD/- SD/- (G.E.VEERABHADRAPPA) (A.D.JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED : 28.06.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR ITA-1863/DEL/2010 5