Shri Sushil Kumar, Ghaziabad V. ITO, Ghaziabad

ITA 2068/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2941 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 29-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 13-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 142(1); 144

Judgement Text

ITA NO. 2068/DEL/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-2068/DEL/2016 ( ASSESSMENT YEAR: 2011-12) SUSHIL KUMAR 797, VAISHALI, RACHNA, DOUBLE STOREY FLATS GHAZIABAD. BLSPK8853R VS ITO WARD 2(3) CGO COMPLEX-1, GHAZIABAD. ASSESSEE BY S/SH. ANUP SHARMA, ADV. SANJAY PARASHAR, ADV. REVENUE BY SH. ARUN KUMAR YADAV, SR.DR ORDER PER K. NARSIMHA CHARY, J.M. ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME FOR THE AY 2011-12 ON 22.01.2015 DECLARING A TOTAL INCOME OF R S. 1,57,720/-. LD. AO RECORDED THAT WHEN THE CASE WAS SELECTED FOR SCR UTINY, NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT CALLED AS THE ACT) WAS ISSUED ON 10.09.2012 WHICH WAS DULY SERVED, BUT SIN CE THERE WAS NO COMPLIANCE NOTICE U/S 142(1) WAS ISSUED AND SERVED. AGAIN NO COMPLIANCE COULD BE SECURED. SUBSEQUENT NOTICES DA TED 06.09.2013, 25.10.2013 WERE ISSUED. ON 29.11.2013 ASSESSEE APP EARED IN PERSON AND SOUGHT TIME. SUBSEQUENTLY ON 30.12.2013 THE AS SESSEE FILED A DATE OF HEARING 20.12.2017 DATE OF PRONOUNCEMENT 26.12.2017 ITA NO. 2068/DEL/2016 2 LETTER STATING THAT THE CASE OF THE ASSESSEE MAY BE TRANSFERRED TO AO, WARD 22(2), NEW DELHI SINCE THE RETURNS OF INCOME W ERE BEING FILED THERE. HOWEVER, SINCE THE RESIDENTIAL ADDRESS OF T HE ASSESSEE WAS WITHIN THE JURISDICTION OF AO, WARD 2(3) THE FILE W AS NOT TRANSFERRED AND THE ASSESSEE NEVER APPEARED THEREAFTER. IN THOSE C IRCUMSTANCES, AO COMPLETED ASSESSMENT U/S 144 OF THE ACT AT A TOTAL INCOME OF RS. 61,28,000/-. APPEAL WAS PREFERRED AND WAS DISPOSED OF BY WAY OF IMPUGNED ORDER, WHEREIN THE LD.CIT (A) OBSERVED THA T THE ASSESSEE HAS NEVER APPEARED BEFORE HIM TOO TO EXPLAIN THE REASONS FOR DELAY IN PREFERRING THE APPEAL AND TO PROSECUTE THE APPEAL O N MERITS ALSO. IN THE CIRCUMSTANCES, LD. CIT (A) ALSO PROCEED EX PARTE AND DISMISSED THE APPEAL. HENCE, THIS APPEAL BY THE ASSESSEE. 2. IT IS THE ARGUMENT OF THE LD. AR THAT THE ABSENC E OF THE ASSESSEE EITHER BEFORE THE AO OR BEFORE THE LD. CIT (A) IS N OT INTENTIONAL. HE SUBMITS THAT THE ASSESSEE BEING A LOW PAID EMPLOYEE OF A PRIVATE COMPANY HAS NO KNOWLEDGE AT ALL OF THE INCOME TAX PR OCEEDINGS AND BELIEVING THE WORDS OF HIS EARLIER COUNSEL THAT THE CASE WAS BARRED BY JURISDICTION, AS SUCH, THERE WAS NO NEED TO APPEAR IN THIS MATTER, THE ASSESSEE ABSENTED HIMSELF. HE SUBMITS THAT IF AN O PPORTUNITY IS GIVEN ON HUMANITARIAN CONSIDERATIONS, THE ASSESSEE WOULD GET HIS TAX LIABILITY DETERMINED BY THE AO. PER CONTRA, LD. DR SUBMITS THAT SUFFICIENT OPPORTUNITY HAD ALREADY BEEN GIVEN TO TH E ASSESSEE AND THERE ARE NO MERITS IN THIS APPEAL. ITA NO. 2068/DEL/2016 3 3. HAVING HEARD THE ARGUMENTS, WE HAVE PERUSED THE RECORD. THE ASSESSEE DOES NOT TAKE SHELTER OF ANY LEGAL RIGHTS VESTED IN HIM IN THIS MATTER. HIS PLEA IS THAT ON FILING THE LETTER FOR TRANSFER OF THE CASE FROM AO WARD NO. 2(3) OF GHAZIABAD TO AO 22(2) OF NEW DE LHI HE WAS MADE TO BELIEVE BY HIS COUNSEL THAT THE PROCEEDINGS ARE BARRED BY JURISDICTION, AS SUCH, THERE IS NO NEED TO APPEAR F URTHER IN THIS MATTER. RECORD DOES NOT REVEAL THAT ANY COMMUNICATION WAS S ENT TO THE ASSESSEE AFTER REJECTING HIS REQUEST FOR TRANSFER. AO RECORDED THAT INASMUCH AS THE PERMANENT AND PRESENT ADDRESS OF TH E ASSESSEE AND THE BANK WITH WHICH HE HOLDS HIS ACCOUNT FALL WITHI N HIS JURISDICTION, THERE WAS NO NEED TO TRANSFER THE MATTER. SINCE IT IS PLEADED THAT THE ASSESSEE IS A LOW PAID EMPLOYEE WITHOUT ANY KNOWLED GE OF THE ACT, RULES OR PROCEDURES HE FAILED TO ENQUIRE AND KNOW T HE FATE OF HIS APPLICATION, THE MATTER ENDED UP IN ASSESSMENT ORDE R U/S 144 OF THE ACT AND THE APPEAL WAS ALSO DISMISSED. STRICTLY SP EAKING THERE DOES NOT APPEAR TO BE ANY LEGAL RIGHT IN FAVOUR OF THE A SSESSEE. HOWEVER, SINCE ALL THE ENDEAVOUR OF THE PROCEDURE BEFORE THE AO, CIT (A) AND THE TRIBUNAL TO REACH THE JUST TAX LIABILITY OF THE ASS ESSEE, WE ARE OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD B E MET NOT BY TAKING A STRICT RULISTIC VIEW AND TO DENY ANY OPPORTUNITY TO THE ASSESSEE, BUT CERTAINLY BY TAKING A LENIENT VIEW TO ALLOW HIM A R EASONABLE OPPORTUNITY. SINCE THE ASSESSEE DOES NOT STAND TO GAIN BY SUFFERING EX PARTE ORDERS, THE REASON ATTRIBUTED BY HIM FOR HIS ABSENC E BEFORE THE ITA NO. 2068/DEL/2016 4 AUTHORITIES BELOW CANNOT BE BRUSHED ASIDE. WITH TH IS VIEW OF THE MATTER, WE SET ASIDE THE MATTER TO THE FILE OF THE AO TO DETERMINE THE TAX LIABILITY OF THE ASSESSEE BY GIVING AN OPPORTUNI TY TO HIM. IT IS MADE CLEAR THAT IT IS THE LAST OPPORTUNITY TO THE ASSESS EE. WE ORDER ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.12.2017 SD/- SD/- (N.K. SAINI) (K. NARSIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 26.12.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI