BHIVAJI BALBHIM JAGDALE, SOLAPUR V. ITO WARD-1, PANDHARPUR

ITA 1882/PUN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5960 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK KUMAR
• Assessee Lawyers: C V DESHPANDE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148; 144

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1882/PUN/2019 / ASSESSMENT YEAR : 2010-11 BHIVAJI BALBHIM JAGDALE, SHRIRAM NAGAR, AT POST MADHA, TALUKA MAHDA, DIST.-SOLAPUR-413209 PAN : AOGPJ0942N ....... / APPELLANT / V/S. ITO, WARD-1, PANDHARPUR. / RESPONDENT ASSESSEE BY : SHRI C. V. DESHPANDE REVENUE BY : SHRI DEEPAK KUMAR / DATE OF HEARING : 30.01.2020 / DATE OF PRONOUNCEMENT : 05.02.2020 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-9, PUNE DATED 20.09.2019 FOR THE ASSESSMENT YEAR 2010-11. 2. THE REVISED GROUNDS FILED BY THE ASSESSEE ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LOWER AUTHORITIES HAVE ERRED DISMISSING THE APPEAL EX-PARTE, WITHOUT GIVING PROPER OPPORTUNITY OF HEARING, THE ACT BEING IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, IT IS PRAYED THAT APPEAL MAY KINDLY BE RESTORED BACK FOR RECONSIDERATION BY LOWER AUTHORITIES. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS 15,13,646/- TO THE INCOME OF THE ASSESSEE WITHOUT CONSIDERING THE SAY OF THE ASSESSEE. 3. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN PASSING THE ASSESSMENT ORDER UNDER SECTION 144 R.W.S.147 DISREGARDING THE REQUEST OF THE ASSESSEE. ITA NO.1882/PUN/2019 - 2 - 4. THE APPELLANT WOULD LIKE TO LEAVE, ADD, ALTER, AMEND, MODIFY, DELETE, ABOVE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING IN THE INTEREST OF NATURAL JUSTICE. 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE FAILED TO FILE THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT. OTHERWISE, THE ASSESSING OFFICER HAS INFORMATION ABOUT THE DEPOSITS IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE AMOUNTING TO RS.15,13,646/-. THE ASSESSING OFFICER ISSUED VARIOUS NOTICES ON VARIOUS DATES (PARA 3 OF THE ASSESSMENT ORDER) AND RECORDED THE NON-COMPLIANCE TO THE SAID NOTICES BY THE ASSESSEE. ALTHOUGH, THE ASSESSEE FILED SOME REPLIES BUT THERE IS NO COOPERATION BY WAY OF FILING OF THE REQUISITE DETAILS BEFORE THE ASSESSING OFFICER. EVENTUALLY, THE REASSESSMENT WAS COMPLETED U/S 144 OF THE ACT DETERMINING THE TOTAL INCOME AT RS.15,13,650/-. 4. DURING THE FIRST APPELLATE PROCEEDINGS ALSO, THERE IS NON-COMPLIANCE FROM THE SIDE OF THE ASSESSEE ON THE VARIOUS DATES OF NOTICES ISSUED BY THE CIT(A). AGAIN, THE APPEAL WAS ADJUDICATED BY THE CIT(A) EX-PARTE AND THE ADDITION MADE BY THE ASSESSING OFFICER WAS CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. 5. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE REVISED GROUNDS EXTRACTED ABOVE. 6. REFERRING TO GROUND NO.1 RELATING TO THE PRINCIPLES OF NATURAL JUSTICE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE MAY BE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AS THE ASSESSMENT SO COMPLETED U/S 144 OF THE ACT AND THE APPEAL WAS HEARD WITHOUT THE ITA NO.1882/PUN/2019 - 3 - PRESENCE OF THE ASSESSEE. MENTIONING ABOUT THE REASONS FOR FAILURE TO ATTEND TO THE HEARING BEFORE THE LOWER AUTHORITIES, LD. COUNSEL MENTIONED THAT THE ASSESSEE IS NOT EDUCATED PERSON AND IS UNAWARE OF THE LEGAL PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT EARLIER COUNSEL OF THE ASSESSEE WAS NOT COOPERATIVE. THE LD. COUNSEL FILED AN AFFIDAVIT EXPLAINING THE REASONS IN THIS REGARD. FOR THE SAKE OF CONVENIENCE, THE RELEVANT CONTENTS OF THE SAID AFFIDAVIT ARE EXTRACTED HEREUNDER :- I THE UNDERSIGNED BHIVAJI BALBHIM JAGADALE AGED 49 OCCUPATION FARMER RESIDING AT SHRIRAM NAGAR MADHA DIST SOLAPUR SOLEMNLY AFFIRM ON OATH AS FOLLOWS. I HAVE STUDIES UP TO 7 TH STANDARD, I RECEIVED NOTICE FROM INCOME TAX DEPARTMENT FOR F.Y. 2010-11 WHICH WAS IN ENGLISH LANGUAGE DUE TO WHICH I COULD NOT UNDERSTAND THE SAME, HENCE, DUE TO NONATTENDANCE THE ASSESSING OFFICER MADE THE EX-PARTE ASSESSMENT FOR THE SAID YEAR. I HAD APPEALED AGAINST THE SAID ASSESSMENT ORDER; HOWEVER MY COUNCIL SHRI R. B. SHAH BEING BUSY IN OTHER WORK COULD NOT ATTEND THE SAID APPEAL. I DID NOT HAVE ANY TAXABLE INCOME FROM F.Y. 2009-10 TO 2013-14 HENCE THE RETURNS FOR THE SAID YEARS HAVE NOT BEEN FILED. FROM F.Y. 2014-15 I EARNED INCOME ABOVE THE TAXABLE LIMITS HENCE I HAVE FILED MY RETURNS FROM F.Y. 2014- 15. I HEREBY ASSURE THAT I SHALL FILE ALL MY FUTURE RETURNS ON TIME AND SHALL ATTEND TO ALL NOTICES IN TIME. WHATEVER IS STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE IF ANY WRONG STATEMENT IF FOUND TO HAVE BEEN MADE BY ME I SHALL BE PUNISHABLE UNDER SECTION 199 OF INDIAN PENAL CODE. 7. FURTHER, LD. COUNSEL MADE A STATEMENT AT BAR THAT THIS TIME THE ASSESSEE WOULD MAKE PROPER REPRESENTATION BEFORE THE LOWER AUTHORITIES AND PLEADED FOR GRANT OF ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. CONSIDERING THE ABOVE FACTS AS WELL AS OBJECTION OF THE LD. DR FOR THE REVENUE, I AM OF THE OPINION THAT THE RIGHT OF FILING THE APPEAL IS GRANTED BY THE STATUTE TO THE ASSESSEE-TAXPAYERS. IN THIS CASE, THE ASSESSEE WANTED TO ITA NO.1882/PUN/2019 - 4 - INVOKE THE SAID RIGHT AND PAID THE APPEAL FEES IN THIS REGARD CONVEYING HIS SERIOUSNESS OF PURSUING THE APPEAL. THE REASONS GIVEN IN THE AFFIDAVIT FOR NON-ATTENDANCE BEFORE THE LOWER AUTHORITIES, APPEARS SUSTAINABLE ONES. THEREFORE, I AM OF THE OPINION THAT AN OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE UNDER CONSIDERATION. ACCORDINGLY, I REMAND ALL THE ISSUES RAISED BY THE ASSESSEE IN HIS APPEAL TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE ASSESSING OFFICER SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE IN HIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 05 TH DAY OF FEBRUARY, 2020. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 05 TH FEBRUARY, 2020. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-9, PUNE; 4. THE PR. CIT-6, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE