Sudheer Vishnu Daftardar, Pune V. Assistant Commissioner of Income-tax, Circle - 10, Pune

ITA 2851/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6897 (ITAT-PUNE)
• Duration Of Justice: 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 05-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Keywords: Principle of natural justice

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NOS.2849 TO 2852/PUN/2017 / ASSESSMENT YEARS : 2006-07 TO 2009-10 SHRI SUDHEER VISHNU DAFTARDAR, BUNGLOW NO.18, PRAMATHESH SOCIETY, NEAR SHIVANAGARI, BEHIND BHUJBAL TOWNSHIP, KOTHRUD, PUNE 411038. PAN : AAKPD8784C. . / APPELLANT V/S ASST. COMMISSIONER OF INCOME TAX, CIRCLE 10, PUNE. . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : SHRI VIVEK AGGARWAL / ORDER PER SUSHMA CHOWLA , JM : THIS BUNCH OF FOUR APPEALS FILED BY THE ASSESSEE ARE AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX - (APPEALS) - 3, PUNE, DATED 13.09.2017 RELATING TO THE ASSESSMENT YEARS 2006-07 TO 2009-10 PASSED UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) 2. THIS BUNCH OF APPEALS RELATING TO THE SAME ASSESSEE ON S IMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS AND ISSUE IN ITA NO.2849/PUN/2017. / DATE OF HEARING : 28.12.2017 / DATE OF PRONOUNCEMENT: 29.12.2017 2 3. THE ASSESSEE IN ITA NO.2849/PUN/2017 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN MAKING AN ADDITION ON AC COUNT OF INCORRECT DECLARATION MADE BY THE APPELLANT WHICH IS IMMEDIATE LY RETRACTED AND WHICH IS NOT SUPPORTED BY ANY IOTA OF EVIDENCE SUCH DECLARATION IS ILLEGAL AND THEREFORE, ANY ADDITION IN THIS REGARD NEEDS TO BE DISREGARDED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED ASSESSING OFFICER ERRED IN MAKING AN ADDITION OF RS .30,000/- MERELY ON THE BASIS OF A DECLARATION MADE BY THE APPELLANT WH ICH IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE WHATSOEVER. 4. THOUGH THE ASSESSEE HAS RAISED THE GROUNDS OF APPEAL AGAINST T HE MERITS OF THE ADDITION, HOWEVER IT WAS POINTED OUT BY THE LD.A.R. FOR THE ASSESSEE THAT COMMISSIONER OF INCOME TAX (APPEALS) HAD P ASSED AN EX-PARTE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF HEAR ING TO THE ASSESSEE. HE STRESSED THAT THE NOTICES ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WERE NOT SERVED UPON THE ASSESSE E AS THE ASSESSEE HAD CHANGED ITS ADDRESS. THE LD.A.R. FOR THE AS SESSEE ALSO POINTED THAT THE APPEALS WERE TRANSFERRED FROM COMMISSIONER OF IN COME TAX (APPEALS) - 6, PUNE TO COMMISSIONER OF INCOME TAX (AP PEALS) 3, PUNE BUT NO INTIMATION WAS RECEIVED TO THAT EFFECT AND HE NCE THE CHANGE IN ADDRESS COULD NOT BE COMMUNICATED TO THE OFFICE OF COMMISSIONER OF INCOME TAX (APPEALS) - 3, PUNE. THE ASSES SEE IN THIS REGARD HAS FURNISHED AN AFFIDAVIT STATING THE SAID FACTS. 5. THE LD.D.R. FOR THE REVENUE POINTED THAT THREE OPPORT UNITIES WERE GIVEN TO THE ASSESSEE, HOWEVER THE ASSESSEE FAILED TO APPEAR BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE IS AGGRIEVED BY THE EX-PARTE ORDER PASSED B Y COMMISSIONER OF 3 INCOME TAX (APPEALS). THE PERUSAL OF THE APPEAL ORDER R EFLECTS THAT THE APPEAL IN THIS CASE WAS FILED ON 25.04.2014. THE COMMIS SIONER OF INCOME TAX (APPEALS) THEREFORE FIXED THE APPEAL FOR HEARIN G ON 09.06.2017, 22.08.2017 AND 25.10.2017. ALL THE NOTICES WERE S ENT BY REGISTERED POST OF ACKNOWLEDGMENT. FIRST NOTICE WAS RET URNED BACK WITH THE REMARK UNCLAIMED. HOWEVER, THE OTHER TWO NOT ICES SENT BY THE COMMISSIONER OF INCOME TAX (APPEALS) WERE RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARK LEFT. SINCE NO ALTERNATE ADDRESS WAS GIVEN, THE COMMISSIONER OF INCOME TAX (APPEALS) WAS OF THE VIEW THAT THE RATIO LAID DOWN BY THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO VS. COMMISSIONER OF WEALTH TAX REPORTED IN (223 ITR 480) AND THE HONBLE SUPREME COURT IN THE CAS E OF COMMISSIONER OF INCOME TAX VS. B. BHATTACHARGEE AND ANO THER REPORTED IN (118 ITR 461) WAS SQUARELY APPLICABLE AND THE APPEAL WAS DECIDED EX-PARTE THE ASSESSEE. 7. THE ASSESSEE HAS FURNISHED THE AFFIDAVIT ON RECORD WH EREIN HE HAS MENTIONED THAT HE PREFERRED THE APPEALS BEFORE COMM ISSIONER OF INCOME TAX (APPEALS) 6, PUNE; HOWEVER THE APPEALS OF THE ASSESSEE WERE TRANSFERRED TO COMMISSIONER OF INCOME TAX (APPEALS) 3, PUNE FOR WHICH NO INTIMATION WAS RECEIVED BY THE ASSESSEE. HE IN THE MEANTIME HAD CHANGED HIS RESIDENCE AND THE CHANGE IN A DDRESS COULD NOT BE COMMUNICATED TO COMMISSIONER OF INCOME TAX (APPE ALS) 3, PUNE IN THE ABSENCE OF ANY COMMUNICATION. HE FURTHER STA TED THAT NONE OF THE NOTICES WERE RECEIVED BY HIM. IN THE ENTIRET Y OF THE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE EX-PARTE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WHEN ADMITTED LY NO 4 NOTICES OF HEARING WERE SERVED UPON THE ASSESSEE. THE PRINCIPLES OF NATURAL JUSTICE REQUIRE THAT REASONABLE OPPORTUNITY OF HE ARING SHOULD BE GIVEN TO THE PERSON BEFORE DECIDING THE APPEAL. IN TH E FACTS OF THE PRESENT CASE, NO REASONABLE OPPORTUNITY OF HEARING HAS B EEN GIVEN TO THE ASSESSEE, SINCE NOTICE OF HEARING HAD NOT BEEN SERVE D ON THE ASSESSEE. ACCORDINGLY, WE DEEM IT FIT TO RESTORE THE ISSU E BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) TO DECIDE THE ISSU E ON MERITS AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSE E. 8. SINCE THE MATTER IS BEING SET ASIDE TO THE FILE OF COMMISS IONER OF INCOME TAX (APPEALS), WE ARE NOT ADJUDICATING THE ISSUES RAISED ON MERITS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E THUS ALLOWED FOR STATISTICAL PURPOSE. 9. THE FACTS AND ISSUES IN ITA NOS.2850 TO 2852/PUN/2017 ARE IDENTICAL TO THE FACTS AND ISSUES IN ITA NO.2849/PUN/2017 AND OUR DECISION IN ITA NO.2849/PUN/2017 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS.2850 TO 2852/PUN/2017. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH DAY OF DECEMBER, 2017. SD/- SD/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) !' / ACCOUNTANT MEMBER ' / JUDICIAL MEMBER PUNE; DATED : 29 TH DECEMBER, 2017. YAMINI 5 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-3, PUNE. PR.CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.