Smt Sheraj bee W/o late Nawabkhan, Pithampur V. The ITO, Dhar

ITA 327/IND/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66701 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 1997-1998
• Appeal Filed On: 05-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S C BHANDARI
• Keywords: Opportunity of being heard
• Section: 28; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH - SMC BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.327/IND/2011 A.Y.1997-98 SMT. SHERAJ BE PITHAMPUR PAN AJWPB 0207F :: APPELLANT VS INCOME TAX OFFICER DHAR :: RESPONDENT APPELLANT BY SHRI S.C.BHANDARI RESPONDENT BY SHRI R.A.VERMA DATE OF HEARING 24.09.2012 DATE OF PRONOUNCEMENT 24.09.2012 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 16.8.2011 FOR THE A.Y. 1997-98 IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF THE ACT. 2 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS, IN BRIEF, ARE THAT THE ASSESSMENT WAS RE OPENED BY ISSUE OF NOTICE U/S 148. THE ALLEGATION OF THE ASSE SSEE IS THAT THE ASSESSING OFFICER DID NOT SUPPLY THE REASONS FO R REOPENING NOR GAVE PROPER TIME TO FURNISH DETAILS CALLED FOR AND PASSED EX- PARTE ORDER. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, GONE T HROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FIND FROM R ECORD THAT AFTER ISSUE OF NOTICE U/S 148, THE ASSESSEE WAS CAL LED TO ATTEND THE OFFICE ON 27 TH MARCH, 2002. DUE TO PROBLEM IN COMPUTER OF THE ASSESSEES AR, THE DETAILS CALLED FOR COULD NOT BE PREPARED AND ADJOURNMENT FOR ONE DAY WAS ASKED FOR. HOWEVER , THE ASSESSING OFFICER DECLINED THE ADJOURNMENT AND PASS ED ORDER U/S 144 ON 28 TH MARCH, 2002. THE INVESTMENT IN HOUSE PROPERTY WAS ALLEGED TO BE MADE IN THE YEAR 1984-85 AND 1985- 86, HOWEVER, THE SAME WAS ADDED AS UNEXPLAINED INVE STMENT DURING THE YEAR, UNDER CONSIDERATION. IT WAS SUBMI TTED THAT ONLY RENOVATION WORK WAS CARRIED OUT DURING THE YEA R. IT WAS ALSO CONTENDED THAT THE COST OF RENOVATION WAS RS. 99,500/- IN 3 THE A.Y. 1997-98 WHEREAS WITHOUT ANY BASIS, THE ADD ITION OF RS. 1,83,000/- WAS MADE IN THE EX-PARTE ORDER. REASONS FOR REOPENING WERE NOT FURNISHED TO THE ASSESSEE. THE A SSESSEE APPROACHED THE LEARNED CIT(A) WHO CONFIRMED THE ASS ESSING OFFICERS ACTION. IN FURTHER APPEAL FILED BY THE A SSESSEE BEFORE THE TRIBUNAL, THE TRIBUNAL VIDE ORDER DATED 28.7.20 05 RESTORED THE MATTER TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION THAT INCOME OF THE ASSESSEE SHOULD BE DETERMINED PROPERL Y AND JUST AND FAIR DECISION MAY BE TAKEN AFTER HEARING THE AS SESSEE. EVEN IN THE SET ASIDE MATTER, THE REASONS FOR REOPE NING WERE NOT SUPPLIED TO THE ASSESSEE NOR HER COMMENTS WERE ASKED FOR. THE CIT(A) HAS ALSO REPEATED THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT WITHOUT PROVIDING REASONABLE AND ADEQUAT E OPPORTUNITY. 4. IN VIEW OF THE FACT THAT THE ORDER WAS PASSED U/ S 144 AND THE REASONS FOR REOPENING WERE NOT FURNISHED TO THE ASSESSEE AND ALSO KEEPING IN VIEW THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF GKN DRIVESHAFT (INDIA) LIMITED ; 259 ITR 19, WE RESTORE THE MATTER TO THE FILE OF THE ASSESS ING OFFICER 4 WITH THE DIRECTION TO SUPPLY REASONS FOR REOPENING AND ALSO TO DECIDE THE MERIT OF THE ADDITION AFRESH AFTER GIVIN G DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS AT LIBERTY TO FURNISH DOCUMENTARY EVIDENCE TO SUBSTANT IATE HIS CLAIM. WE ALSO DIRECT THE ASSESSEE TO CONTACT THE OFFICE OF THE ASSESSING OFFICER FOR TIMELY COMPLETION OF ASSESSME NT, WITHIN 2 MONTHS FROM THE DATE OF SERVICE OF THIS ORDER. IN CASE OF ANY FAILURE ON THE PART OF THE ASSESSEE, THE ASSESSING OFFICER IS AT LIBERTY TO DECIDE THE SAME AS PER MATERIAL PLACED O N RECORD. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24 TH SEPTEMBER, 2012. SD/- (R.C.SHARMA) ACCOUNTANT MEMBER DATED: 24 TH SEPTEMBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2424 5