Sh. Sawinder Singh, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 325/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8674 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Non compliance; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T.S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A NOS. 325 & 326(ASR)/2016 ASSESSMENT YEAR:2009-10 SH. SAWINDER SINGH, VILL: HEIR PALAH SAHIB ROAD, OPP. CENTRAL JAIL NOW MEERA KALAN, AMRITSAR. PAN:FUFPS-5148D VS. INCOME TAX OFFICER, WARD 4(4), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: NONE. RESPONDENT BY: SH. SHABEER HANDU (DR) DATE OF HEARING: 22.02.2017 DATE OF PRONOUNCEMENT: 28.03.2017 ORDER PER N.K.CHOUDHRY (JM): BOTH THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AMRITSAR, DATED 29.02.2016 FOR ASST. YEAR:2009 -10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPE AL. IN ITA NO.325(ASR)/2015. (I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD. CIT(A)-2, AMRITSAR WAS NOT JUSTIFIED IN DISMISSING THE APPEAL FILED EXPARTE, ON GROUND OF NON COMPLIANCE OF NOTICE OF HEARING AND W ITHOUT DISCUSSING THE FACTS AND MERITS OF THE CASE AND HENCE THE ORDE R DESERVES TO BE SET ASIDE. (II) THAT THE APPELLANT IS AN AGRICULTURIST, WHO IS ILLITERATE AND NO CONVERSANT WITH COMPLEX INCOME TAX LAWS AND HENCE T HE ORDER OF THE CIT(A)-2, OF DISMISSING THE APPEAL WITHOUT GOING IN TO THE MERITS OF THE CASE IS AGAINST THE CARDINAL PRINCIPAL OF NATURAL JUSTICE AND DESERVES TO BE VACATED. ITA NO.325 & 326 (ASR)/2016 ASST. YEAR : 2009-10 2 (III) THAT THE ORDER OF THE CIT(A) AS WELL AS THE A O IS AGAINST THE LAW AND FACTS OF THE CASE. IN ITA NO.326(ASR)/2016 (I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD. CIT(A)-2, AMRITSAR WAS NOT JUSTIFIED UPHOLDING THE ACTION OF THE AO OF IMPOSITION PENALTY U/S 271(1)(B) BY WAY OF EX-PARTE ORDER, ON GROUND OF NON COMPLIANCE OF NOTICE OF HEARING AND WITHOUT DISCUSS ING THE FACTS AND MERITS OF THE CASE AND HENCE THE ORDER DESERVES TO BE SET ASIDE. (II) THAT THE APPELLANT IS AN AGRICULTURIST, WHO IS ILLITERATE AND NOT CONVERSANT WITH COMPLEX INCOME TAX LAWS AND HENCE T HE ORDER OF THE CIT(A)-2, OF DISMISSING THE APPEAL WITHOUT GOING IN TO THE MERITS OF THE CASE IS AGAINST THE CARDINAL PRINCIPAL OF NATURAL JUSTICE AND DESERVES TO BE VACATED. (III) THAT THE ORDER OF THE CIT(A) AS WELL AS THE A O IS AGAINST THE LAW AND FACTS OF THE CASE. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: IN THE INSTANT CASE, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 13 TH JANUARY, 2015, THEREAFTER FEELING AGGRIEVED BY THE SAID ORDER PASSED BY THE ASSESSING OFFICER , THE ASSESSEE PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A ) AND IN THE ABSENCE AND NON APPEARANCE OF THE APPELLANT/ASSESSEE, THE LD. CIT(A) DISMISSED THE APPEAL FOR WANT OF PROSECUTION BY HOLDING AS UNDER: 02. FURTHER IT IS EMERGING FROM FACTS AND CIRCUMSTANCES O F THE CASE THAT THE APPELLANT IS NOT CARING TO COMPLY WITH OPP ORTUNITY NOTICES ISSUED U/S 250(1) OF THE INCOME TAX ACT.1961. SL NO. NOTICE DT. FIXATION DT. MODE SERVICE REMARKS NARRATING FATE. 1 21.09.2015 07.10.2015 N/S REMAINED UNCOMPLIED & ITA NO.325 & 326 (ASR)/2016 ASST. YEAR : 2009-10 3 UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 2 15.10.2015 27.10.2015 SPEED POST REMAIN UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FIELD 3 11.01.2016 22.01.2016 SPEED POST REMAIN UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FIELD 4 01.02.2016 16.02.2016 SPEED POST SPEED POST RECEIVED BACK UNSERVED. UNDER THE CIRCUMSTANCES, I AM OF THE VIEW THAT ASSE SSEE IS NOT INTERESTED IN PURSUING OF THE PRESENT APPEAL AND TH E SAME IS LIABLE TO BE DISMISSED ON THIS GROUND ITSELF. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE SHOW SLEEP OVER THEIR RIGHTS . THE PRINCIPLE IS WELL EMBODIED IN THE WELL KNOWN DICTUM VIGILANTIBUS, NO N DORMENTIBUS, JURA SUBVENIUNT. CONSIDERING THE FACT S OF THIS CASE AND RELYING UPON THE DECISION OF THE ITAT DELHI BEN CH IN CIT VS. MULTIPLAN INDIA LTD. 38 ITD 320 AND THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF L ATE TUKOJI RAO HOLKAR VS. CWT (1997) 223 ITR 480 THE PRESENT APPEAL IS DISMISSED FOR WANT OF PROSECUTION 4. FEELING AGGRIEVED BY THE ORDER OF LD. CIT(A), TH E ASSESSEE FILED THE INSTANT APPEALS WHICH ARE UNDER CONSIDERATION. 5. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WE REALIZE THAT THE LD. CIT(A) DISMISSED THE APP EAL FOR THE WANT OF PROSECUTION BUT FAILS TO DECIDE THE APPEALS ON M ERITS. FROM THE NOTICES DATED 21.09.2015, 15.10,2015, 11.01.2016 & 01 .02.2016, IT REFLECTS THAT NOTICES COULD NOT BE SERVED DUE TO ONE OR A NOTHER REASON AND REMAINED UNCOMPLIED AND THE PROCEEDINGS ALSO REMAIN ED ITA NO.325 & 326 (ASR)/2016 ASST. YEAR : 2009-10 4 UNATTENDED AS NOR APPEARED NOR FILED ANY REPLY ON BE HALF OF THE ASSESSEE. IN THE SAID CIRCUMSTANCES, JUSTICE WOULD BE MET IF T HE CASES ARE REMANDED BACK TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH ON MERITS BY GIVING PROPER AND REASONABLE OPPORTUNITIES TO THE PARTIES CONCERNED. HENCE, THE APPEALS OF THE ASSESSEE REMITTED BACK TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH. 6. IN THE RESULT, THE APPEALS, FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.03. 2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28.03.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER