Smt. Rashmi Shrikant Bhuruk, Pune V. Income-tax Officer, Ward - 8(1), Pune

ITA 283/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4903 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-01-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Principle of natural justice
• Section: 144

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO. 283/PUN/2018 / ASSESSMENT YEAR : 2008-09 SMT. RASHMI SHRIKANT BHURUK, PRISM HSG. SOCIETY, FLAT NO. 1502, B2 BUILDING, BEHIND PISER SCHOOL, AUNDH, PUNE-411 007. PAN : AEWPB0437N .... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD 8(1), PUNE. / RESPONDENT ASSESSEE BY : SMT. DEEPA KHARE REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 07.02.2019 / DATE OF PRONOUNCEMENT : 08.02.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEAL), PUNE-13 DATED 04.05.2017 FOR THE ASSESSMENT Y EAR 2008-09 AS PER FOLLOWING GROUNDS OF APPEAL ON RECORD: 1.THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN D ISMISSING THE APPEAL OF THE APPELLANT EX-PARTE FOR NON-ATTENDANCE THEREB Y CONFIRMING THE ADDITIONS OF RS 44,52,956/- MADE IN THE ASSESSMENT ORDER. 2 ITA NO. 283/PUN/2018 A.Y.2008-09 2. THE LD CIT(A) ERRED IN LAW AND ON FACTS IN CONFI RMING THE ASSESSMENT MADE U/S. 144 WHEN THERE WAS A SUFFICIENT REASON FO R NON-ATTENDANCE AND CONFIRMED THE ADDITIONS WHICH ARE ARBITRARY. 3. LD CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMIN G ADDITION OF RS.44,52,956/- AS INCOME FROM CAPITAL GAINS FROM TR ANSFER OF DEVELOPMENT RIGHTS. 4. THE APPELLANT CRAVES TO ADD, ALTER, MODIFY OR SU BSTITUTE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2. AT THE OUTSET, WE NOTICE THAT THERE IS A DELAY OF 251 DAYS FOR FILING THE APPEAL. THAT WITH REGARD TO THIS DELAY, THE LD. AR OF THE A SSESSEE FILED CONDONATION PETITION ALONG WITH AFFIDAVIT STATING REASONS FOR SUCH DELAY IN FILING THE APPEAL BEFORE US. WE HAVE PERUSED THE CONDONAT ION PETITION AND THE AFFIDAVIT ALONG WITH REASONS FOR DELAY. WE ARE CONVINCED WITH THE JUSTIFICATION RENDERED BY THE ASSESSEE THROUGH THESE DOCUMENTS. W E THEREFORE CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL ON MERITS. 3. WHILE PERUSING THE GROUNDS OF APPEAL, WE FIND THAT THE L D. CIT(APPEAL) HAS PASSED AN EX-PARTE ORDER CONFIRMING THE ADDITION MAD E BY THE ASSESSING OFFICER ON THE GROUND OF NON-ATTENDANCE BY THE ASSESSEE . WE HAVE ALSO GONE THROUGH THE LD. CIT(APPEAL)S ORDER AND WE FIND THAT DETA ILED WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE. THAT EVEN IN THE CA USE TITLE OF THE CIT(APPEAL)S ORDER, IT IS STATED AS PRESENT FOR THE APP ELLANT MS. DEEPA KHARE, CA AND THEREFORE, IT CANNOT BE STATED THAT THER E WAS NON-COMPLIANCE AT THE FIRST APPELLATE PROCEEDINGS. HOWEVER, WHEN WE LOOK INTO THE ASSESSMENT ORDER, THE SAID ORDER WAS PASSED U/S.144 R. W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THAT ON PERUSAL OF THE ASSESSMENT ORDER, THERE WAS NO TICE U/S.142(1) OF THE ACT ISSUED ALONG WITH DETAILED QUESTIONNAIRE TO THE AS SESSEE ASKING FOR 3 ITA NO. 283/PUN/2018 A.Y.2008-09 SUBMISSION OF THE VARIOUS DETAILS WITH REGARD TO THE CASE OF THE ASSESSEE. HOWEVER, THERE WAS NO RESPONSE FROM THE ASSESSEE. IT IS WITH THIS BACKGROUND, THE ASSESSING OFFICER COMPLETED ASSESSMENT U/ S.144 R.W.S.147 OF THE ACT. 4. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE PRA YED FOR ONE FINAL OPPORTUNITY TO REPRESENT THEIR CASE BEFORE THE ASSESSIN G OFFICER AND STATED THAT EVEN AT THE FIRST APPELLATE AUTHORITY, IT WAS ONLY T HE WRITTEN SUBMISSIONS THAT WERE CONSIDERED AND THE RIGHTS AND LIABILITIES ARE YE T TO BE DETERMINED SO FAR MERITS ARE CONCERNED. THE LD. AR OF THE ASSESSEE PRA YED THAT THE MATTER MAY BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR RE-ADJU DICATION SINCE ASSESSMENT ORDER PASSED U/S.144 OF THE ACT AND ENSURE D THAT THIS TIME THEY WILL COMPLY WITH ALL THE NOTICES AND DEFEND THEIR CASE ON M ERITS BEFORE THE REVENUE AUTHORITIES. 5. THE LD. DR, PER CONTRA, HAS PLACED RELIANCE ON THE OR DERS OF THE SUB- ORDINATE AUTHORITIES. 6. WE HAVE PERUSED THE CASE RECORDS AND HAVE GIVEN T HOUGHTFUL CONSIDERATION TO THE ARGUMENTS RENDERED BY THE PARTIES HEREIN. WE HAVE ALSO PERUSED THE RESPECTIVE ORDERS OF THE REVENUE AUTHORITIE S. IN THIS CASE, IT WOULD BE BETTER IN THE INTEREST OF JUSTICE THAT THE FACTU AL PARAMETERS SHOULD COME UP MORE CLEARLY THROUGH PROPER REPRESENTATION OF THE ASSESSEE VIS--VIS PROPER ADJUDICATION BY THE REVENUE AUTHORITIES. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD . CIT(APPEAL) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION IN COMPLIANCE WITH THE PRINCIPLES OF NATURAL JUSTICE. 4 ITA NO. 283/PUN/2018 A.Y.2008-09 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED ON 08 TH DAY OF FEBRUARY, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 08 TH FEBRUARY, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL), PUNE-13. 4. THE PR. CIT-5, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO. 283/PUN/2018 A.Y.2008-09 DATE 1 DRAFT DICTATED ON 0 7 .0 2 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 0 7 .0 2 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER