Rekha Sharma, Faridabad V. ITO, New Delhi

ITA 1993/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7556 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKHI BIM AL
• Assessee Lawyers: SHYAM SUNDER MARGLA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

ITA NO. 1993/DEL/13 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEM BER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A .NO. 1993 /DEL/2013 (ASSESSMENT YEAR:- 2008-09 REKHA SHARMA 1509, SECTOR-15, FARIDABAD ABIPS0844F (APPELLANT) VS ITO WARD 20(1), NEW DELHI (RESPONDENT) APPELLANT BY SH. SHYAM SUNDER MARGLA, CA RESPONDENT BY MS. RAKHI BIMAL, SR. DR ORDER PER CHANDRA MOHAN GARG, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXII, NEW DELH I DATED 21/12/2012 PASSED IN FIRST APPEAL NO. 128/2010-11 FOR ASSESSMENT YEAR 20 08-09. IN THIS APPEAL, THE ASSESSEE HAS RAISED AS MANY AS SEVEN GROUNDS BUT TH E PRIMARY LEGAL CONTENTION OF THE ASSESSEE IN GROUND NO. 1 IS THAT THE LD.CIT (A) HAS NOT MADE ANY GROUND WISE DECISION ON THE GROUNDS RAISED BY THE ASSESSEE BEFO RE THE FIRST APPELLATE AUTHORITY. DATE OF HEARING 10.05.2016 DATE OF PRONOUNCEMENT 30.05.2016 ITA NO. 1993/DEL/13 2 THEREFORE, THE CASE SHOULD BE RESTORED TO THE FILE OF THE LD.CIT (A). THEREFORE, WE PROCEED TO DECIDE THE GROUND NO. 1 OF THE ASSESSEE WHICH READS AS UNDER: 1. THAT ON THE FACTS AND IN LAW AND IN THE CIRCUMSTAN CES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS NO DECISION IN HIS ORDER. THE CASE SHOULD BE RESTORED TO HIS FILE. 2. WE HAVE HEARD THE ARGUMENTS BOTH THE SIDES AND C AREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD BEFORE US. THE LEARNE D COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER COMPLETED TH E ASSESSMENT U/S 144 OF THE INCOME-TAX ACT 1961 (FOR SHORT THE ACT) EX-PARTE WI THOUT PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. THE LD. ASSESSEES REPRESENTATIVE (AR) FURTHER S UBMITTED THAT DURING THE FIRST APPELLATE PROCEEDINGS THE ASSESSEE HAS ALSO N OT BEEN AFFORDED OPPORTUNITY OF BEING HEARD AS THE ASSESSEE HAS NOT RECEIVED ANY NO TICE OF HEARING FROM THE FIRST APPELLATE AUTHORITY. THE LD. AR ELABORATING THE FA CTS AND CIRCUMSTANCES WHEREIN THE ASSESSEE WAS DENIED OPPORTUNITY OF BEING HEARD, ELABORATED THAT THE ASSESSEE WAS TO DEMOLISH THE OLD BUILDING SITUATED AT PLOT N O. 1582, SECTOR 15, FARIDABAD AND DUE TO SOME TECHNICAL PROBLEM AND SHE GAVE THE CONTRACT TO DEMOLISH THE SAME TO MR. YOGENDRA KUNDORIYA ON 3/1/2012 AND SHIF TED TO THE HOUSE IN NEARBY AREA TO HOUSE NO. 1509, SECTOR 15, FARIDABAD TO LOO K AFTER THE CONSTRUCTION ACTIVITY WHICH WAS CARRIED ON UP TO 31/3/2012. THE LD. AR F URTHER POINTED OUT THAT DURING PERIOD STAY OF ASSESSEE AT HOUSE NO. 1509, SECTOR 15, FARIDABAD, THE NOTICES ISSUED BY THE LD.CIT (A) ON 14/3/2012, 25/7/2012 & 14/12/2 012 WERE NOT RECEIVED AND APPEAL OF THE ASSESSEE WAS DISMISSED EX-PARTE WITHO UT ADJUDICATING THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE LD.CIT (A). THE LD. AR VEHEMENTLY POINTED OUT THAT THE A.O ALSO COMPLETED ASSESSMENT U/S 144 OF T HE ACT, HENCE, THE ASSESSEE ITA NO. 1993/DEL/13 3 WAS DENIED OPPORTUNITY OF BEING HEARD BY THE AUTHOR ITIES BELOW. THEREFORE, THE CASE MAY KINDLY BE RESTORED TO FILE OF EITHER A.O O R THE CIT (A) TO MEET ENDS OF THE JUSTICE AS THERE WAS A CLEAR VIOLATION OF PRINCIPLE NATURAL JUSTICE BY THE A.O AND THE LD.CIT (A). 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORT ED THE ACTION OF THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN DESPITE O F SEVERAL NOTICE THE ASSESSEE APPELLANT DID NOT APPEAR DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS THEN THE AUTHORITIES BELOW HAD NO ALTERNATE BUT TO DECIDE TH E CASE EX-PARTE. THEREFORE, IT CANNOT BE ALLEGED THAT THE AUTHORITIES BELOW VIOLAT ED PRINCIPLES OF NATURAL JUSTICE. THE LD. DR STRONGLY SUPPORTED ACTION OF THE A.O AS WELL AS LD.CIT(A). HOWEVER, HE FAIRLY SUBMITTED THAT THE DEPARTMENT HAS NO SERIOUS OBLIGATION IF THE CASE IS RESTORED TO THE FILE OF THE A.O FOR A FRESH AND DENOVO ADJUDICATION. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSION AND CAREFUL PERUSAL OF THE ASSESSMENT AND FIRST APPELLATE ORDER, WE OBSERVE TH AT THE PROCEEDINGS BEFORE THE AUTHORITIES BELOW HAVE BEEN COMPLETED EX-PARTE AND THE ASSESSEE HAS NOT PROVIDED DUE OPPORTUNITY OF HEARING EITHER BY THE A.O OR BY THE LD.CIT(A). THE FACT OF TEMPORARILY SHIFTING TO NEARBY HOUSE SUPPORTS THE C ONTENTION OF THE ASSESSEE THAT SHE DID NOT RECEIVE THE NOTICES SENT TO HER ON PREV IOUS ADDRESS OF HOUSE NO, 1582, SECTOR 15, FARIDABAD. IT IS PERTINENT TO MENTION T HAT IN GROUND NO. 2 RAISED BEFORE THE LD.CIT(A) THE ASSESSEE SPECIFICALLY ALLEGED EX- PARTE ASSESSMENT ORDER BUT THE SAME HAS NOT BEEN ADJUDICATED BY THE LD.CIT (A) AND THIS FACT IS ALSO APPARENT FROM THE OPERATIVE PART PARA 8.1 & 8.2 OF THE IMPUGNED F IRST APPELLATE ORDER. 6. FROM THE ORDER OF THE LD.CIT (A) IT IS ALSO VIVI D THAT THE LD.CIT (A) IS ONLY FOCUSED ON THE ISSUANCE OF NOTICE AND ITS COMPLIANC E AND IN PARA 8.3 THE LD.CIT (A) ITA NO. 1993/DEL/13 4 DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THA T THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL WHICH IS NOT A PROPER AND JUSTIFIED APPROACH FOR A QUASI JUDICIAL FIRST APPELLATE AUTHORITY. IN VIEW OF ABOV E, WE ARE OF THE CONSIDERED VIEW, THAT THE ASSESSEE BEING A LADY INDIVIDUAL TAX PAYER WAS DENIED OPPORTUNITY OF BEING HEARD BY THE AUTHORITIES BELOW AND HER CASE WAS NOT PROPERLY ADJUDICATED NEITHER AT THE ASSESSMENT STAGE NOR AT THE FIRST APPELLATE STAGE. THEREFORE, WE FIND IT JUST AND PROPER TO RESTORE THE CASE TO THE FILE OF THE A .O FOR FRESH DENOVO ADJUDICATION. HENCE, THE CASE IS RESORTED TO THE FILE OF A.O WITH A DIRECTION THAT THE A.O SHALL FRAME A FRESH ASSESSMENT AFTER AFFORDING DUE OPPORT UNITY OF HEARING OF THE ASSESSEE AND WITHOUT BEING PREJUDICED FROM THE EARLI ER ASSESSMENT AND FIRST APPELLATE ORDER. WE ORDER ACCORDINGLY. GROUND NO. 1 OF THE ASSESSEE IS ALLOWED IN THE MANNER AS INDICATED ABOVE. 7. SINCE, BY THE EARLIER PART OF THIS ORDER, WE HAV E RESTORED THE CASE TO THE FILE OF A.O TO THE ASSESSMENT STAGE. THEREFORE, OTHER G ROUNDS OF THE ASSESSEE BECOMES ACADEMIC AND INFRUCTUOUS AND WE DISMISS THE SAME AS HAVING BECOME INFRUCTUOUS. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH MAY 2015. SD/- SD/- (S.V.MEHROTRA) (C. M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 /05/2015 *R. NAHEED* ITA NO. 1993/DEL/13 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 24.05.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 25.05.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30.05.20 16 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 30.05.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. ITA NO. 1993/DEL/13 6 10. DATE OF DISPATCH OF ORDER.