JAMALUDDIN, GHAZIABAD V. ITO, WARD- 1(3), GHAZIABAD

ITA 2627/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0184 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 16-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA
• Keywords: Set aside
• Section: 64; 22; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.- 2627/DEL/ 2018 (ASSESSMENT YEAR: 2014-15) JAMAALUDDIN, S/O: CHUNNER AHMED, WARD NO. 7, RAFIKABADCOLONY,DASNA, GAZIABAD. VS. ITO, WARD-1 (3) GAZIABAD. PAN NO. AFAPJ5448J APPELLANT RESPONDENT ASSESSEE BY NONE REVENUE BY MS ANIMA, SR. DR DATE OF HEARING: 22/7/2021 PRONOUNCEMENT ON 22/7/2021 ORDER PER K. NARASIMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 02/01/2018 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), GAZIABAD (LD . CIT(A)), IN THE CASE OF SH. JAMALUDDIN (THE ASSESSEE), FOR THE AS SESSMENT YEAR 2014-15, ASSESSEE PREFERRED THIS APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SALE/OF SCRAP AND FOR THE ASSESSMENT YE AR 2014-15 HE HAD 2 FILED HIS RETURN OF INCOME ON 24/9/2014 DECLARING A N INCOME OF RS. 4,87,790/-. ASSESSMENT UNDER SECTION 143(3)/144 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AT AN INCOME OF RS. 68, 87, 790/-BY MAKING ADDITION OF RS. 64 LACS UNDER SECTION 69 OF THE ACT IN RESPECT OF THE CASH DEPOSITS/INVESTMENT IN SAVING BANK ACCOUNT. 3. AGGRIEVED BY SUCH AN ACTION OF THE LEARNED ASSES SING OFFICER, ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). LD . CIT(A), HOWEVER, OBSERVED THAT THE ASSESSEE HAD NOT ENTER APPEARANCE DESPITE SEVERAL OPPORTUNITIES AND FILED APPLICATIONS OF ADJOURNMENT AND WITHOUT THE FILING ANY WRITTEN SUBMISSIONS. LD. CIT(A) CONCLUDE D THAT FOR NO PROSECUTION THE APPEAL HAD TO BE DISMISSED. LD. CIT (A) REFERRED TO CERTAIN IN SUPPORT OF HER OBSERVATION THAT FOR NO PROSECUTI ON OF THE APPEAL, THE APPEAL OF THE ASSESSEE HAD TO BE DISMISSED. LD. CIT (A), THEREAFTER, REFERRED TO CERTAIN FACTS AND BASING ON THE OBSERVA TIONS OF THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE FAILED TO SUBST ANTIATE THE SOURCE OF CASH DEPOSITS IN HIS SAVINGS BANK ACCOUNT, DISMISSE D THE APPEAL. 4. ASSESSEE IS AGGRIEVED BY SUCH DISMISSAL OF THE A PPEAL BY THE LD. CIT(A) AND FILED THIS APPEAL BEFORE US CONTENDING T HAT THE DISMISSAL OF A GENUINE APPEAL IN EX PARTE MANNER FOR THE ABSENCE O F THE ASSESSEE RESULTED IN MISCARRIAGE OF JUSTICE; AND THAT AS A M ATTER OF FACT, ON THE LAST DATE OF HEARING, NAMELY, ON 21/12/2017 THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED AN APPLICATION FOR ADJOURNMENT B Y WAY OF EMAIL, BUT THE ASSESSEE WAS NOT INFORMED OF THE NEXT DATE OF H EARING DUE TO WHICH THE ASSESSEE COULD NOT MAKE ANY APPEARANCE, BUT LOO KING AT THE ABSENCE OF THE ASSESSEE THE LD. CIT(A) REACHED A CONCLUSION THAT THE APPEAL WAS 3 LIABLE TO BE DISMISSED FOR NONPROSECUTION. ASSESSEE ALSO CHALLENGED THE IMPUGNED ORDER ON MERITS ALSO. 5. WHEN THE MATTER IS CALLED, NEITHER THE ASSESSEE NOR ANY AUTHORISED REPRESENTATIVE ENTERED APPEARANCE. IT COULD BE SEEN FROM THE RECORD THAT THE NOTICE SENT TO THE ADDRESS GIVEN IN FORM NO. 36 IS RETURNED WITH THE ENDORSEMENT OF THE POSTAL SERVANT THAT THE ADDRESSE E LEFT. IF THE ASSESSEE IS AVAILABLE IN SUCH ADDRESS, SUCH NOTICE SHOULD HA VE BEEN SERVED ON THE ASSESSEE. IF FOR ANY REASON, THE ASSESSEE IS NOT AV AILABLE THERE, IT IS FOR THE ASSESSEE TO MAKE ARRANGEMENTS FOR SERVICE OF SUCH N OTICE BY FURNISHING THE ADDRESS WHERE THE ASSESSEE WOULD BE AVAILABLE, OR TO DELIVER IT TO SOME AUTHORISED PERSON, OR BY MAKING REQUEST TO THE POSTAL DEPARTMENT TO DETAIN THE MAIL TILL THE ASSESSEE CLAIMS THE SAM E. SINCE THE ASSESSEE DOES NOT SEEM TO HAVE ADOPTED ANY OF THESE METHODS, WE ARE THE CONSIDERED OPINION THAT NO TIME COULD BE GRANTED. B ASING ON THE RECORD WE PROCEED TO HEAR THE COUNSEL FOR REVENUE AND DECI DE THE MATTER ON MERITS. 6. AT THE OUTSET, LD. DR SUBMITS THAT NO DOUBT THE IMPUGNED ORDER IS AN EX PARTE ORDER, BUT IN VIEW OF THE FACT THAT PER SISTENTLY THE ASSESSEE WAS NOT COOPERATING WITH THE DISPOSAL OF APPEAL ON MERITS, THE LD. CIT(A) WAS LEFT WITH NO OPTION BUT TO PROCEED EX PARTE. SH E FURTHER SUBMITTED THAT EVEN BEFORE THIS TRIBUNAL ALSO THE ASSESSEE IS EXHIBITING THE SAME ATTITUDE OF NON-COOPERATION AND THEREFORE, THE ASSE SSEE DOES NOT DESERVE ANY LENIENT TREATMENT. SHE, HOWEVER, SUBMIT S THAT IF FOR ANY REASON THIS TRIBUNAL DEEMS IT JUST AND NECESSARY TO PROCEED WITH THE MATTER AND TO LOOK INTO THE MERITS OF THE CASE, IN ALL FAIRNESS, IT WOULD BE REASONABLE TO REMAND ISSUE BACK TO THE FILE OF THE LD. CIT(A) FOR DISPOSAL 4 OF THE APPEAL ON MERITS, BECAUSE THE LD. CIT(A) COU LD NOT ADVERT TO THE MERITS OF THE CASE IN THE LIGHT OF THE SUBMISSIONS, IF ANY TO BE MADE, ON BEHALF OF THE ASSESSEE. 7. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LD. DR. NO DOUBT, THE IMPUGNED ORDER IS AN EX PARTE ORDER, THOUGH THE LD. CIT(A) INCIDENTALLY REFERRED TO THE FACTS OF THE CASE AND TO THE OBSERVATIONS OF THE LEARNED ASSESSING OFFICER. THE CRUX OF GRIEVANCE OF THE ASSESSEE IS THAT ON 21/12/2017 AN ADJOURNMEN T APPLICATION WAS REFERRED BY WAY OF EMAIL, AND SUBSEQUENTLY THE ASSE SSEE DID NOT RECEIVE ANY COMMUNICATION AS TO THE NEXT DATE OF HEARING; W HEREAS THE IMPUGNED ORDER WAS PASSED ON 02/01/2018. THE IMPUGN ED ORDER SHOWS THAT AT THE REQUEST OF THE ASSESSEE THE ADJOURNMENT WAS GRANTED TILL 20/12/2017, BUT IT DOES NOT SPEAK OF ANY ADJOURNMEN T APPLICATION SUBMITTED BY THE ASSESSEE ON 21 TO 2017. THE APPEAL IS DISPOSED OF WITHIN A SPAN OF THREE MONTHS FROM THE DATE OF ISSU ANCE OF THE FIRST NOTICE TO THE ASSESSEE. 8. IN THE CIRCUMSTANCES, WHILE TAKING INTO CONSIDER ATION THE SUBMISSIONS MADE BY THE LD. DR AND ALSO THE GRIEVAN CE OF THE ASSESSEE IN THE GROUNDS OF APPEAL, WE ARE OF THE CONSIDERED OPI NION THAT THE ENDS OF JUSTICE WOULD BE MET BY GRANTING AN OPPORTUNITY TO THE ASSESSEE TO PUT FORTH HIS CASE BEFORE THE LD. CIT(A) AND GET THE MA TTER DISPOSED OF ON MERITS. WITH THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER, AND RESTORE THE APPEAL TO THE FILE OF THE LD. CIT(A ) FOR DISPOSAL ACCORDING TO LAW, ON MERITS, AFTER AFFORDING AN OPPORTUNITY T O THE ASSESSEE. IT IS MADE CLEAR THAT IT IS THE LAST OPPORTUNITY GRANTED TO THE ASSESSEE, AND IF 5 THE ASSESSEE DOES NOT CHOOSE TO AVAIL THE SAME, NO FURTHER OPPORTUNITY WOULD BE GRANTED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF JULY, 2021 IMMEDIATELY AFTER CONCLUSION OF HEARING ON VIR TUAL MODE. SD/- SD/- (N.K.BILLAIYA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22/7/2021. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI