Kanti Devi, Noida V. ITO, Noida

ITA 3391/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4285 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VAS HANTHAN
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. N.K. SAINI, ACCOUNTANT MEMBER ITA NO. 3391DEL/2017 ASSTT. YEAR 2009-10 KANTI DEVI D-17 SECTOR-122 NOIDA VS. ITO WARD -2(1) NOIDA (APPELLANT) (RESPONDENT) PAN NO. AAHPB7754M APPELLANT BY : NONE RESPONDENT BY : SH. T. VAS HANTHAN, SR. DR DATE OF HEARING : 18 .0 9 .201 7 DATE OF PRONOUNCEMENT: 25 . 9 .201 7 ORDER PER N.K.SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 30.03.2017 OF CIT(A)- ALIGARH. 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. I, THE REFORE, PROCEED EX-PARTE QUA THE ASSESSEE. 3. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE EX- PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING ADEQU ATE OPPORTUNITY OF BEING HEARD AND IN CONFIRMING THE ADDITION OF RS. 19,58,7 50/- MADE BY THE AO. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE AO ISSUE D A NOTICE U/S 148 OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO THE ACT) ON 30.3 .2016 ON THE BASIS OF 2 ITA NO. 3391/DEL/2017 KANTI DEVI INFORMATION THAT THE ASSESSEE ALONG WITH OTHER CO- OWNERS SMT. SANTOSH WIFE SHRI RAMESH KUMAR, NIYAD ARGANJ, DADRI HAS PURCHAS ED RESIDENTIAL PLOT KHATA NO. 605, KHET NO. 13K MEASURING 990.687 SQ. YARDS I N VILLAGE CHHAPROLA, DADRI FOR RS. 37,50,000/- PLUS STAMP DUTY OF RS. 1,67,500 /-. SINCE NO COMPLIANCE TO NOTICE U/S 148 OF THE ACT WAS MADE, THEREFORE, THE AO FRAMED THE ASSESSMENT U/S 144 OF THE ACT AND ASSESSED THE INCOME AT RS. 1 9,58,750/- ( 50% OF THE TOTAL CONSIDERATION OF SALE OF RS. 37,50,000 + STA MP DUTY OF RS. 1,67,500/-) . 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX PARTE BY OBSERVING IN PARA 3 OF THE IMPUGNED ORDER AS UNDER : 3. THE APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME AND NO INFORMATION OR ANY OTHER DETAIL WAS CALLED FOR. THE APPELLANT HAD ALL THE LIBERTY AND TIME AVAILABLE TO IT TO ENCLOSE WHATEVER IT CONSIDERED TO BE NECESSARY W ITH ITS APPEAL WHICH WAS FILED ON 27.01.2017. THE APPELLANT WHICH HAD NOT COMPLIED WI TH ANY OF THE NOTICES ISSUED BY THE LD. A.O. AND BECAUSE OF WHICH THE LD. A.O. WAS COMPELLED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF I.T. ACT, 1961 WAS ON ITS OWN ASSUMING THAT SOME UNSPECIFIED DOCUMENTS WERE REQUIRED WHEN NO SUCH RE QUISITION WAS MADE BY THIS OFFICE. EVEN THEN THE REQUEST OF THE APPELLANT FOR ADJOURNMENT OF THE CASE WAS ACCEPTED AND THE CASE WAS ADJOURNED TO 31.03.2017. THE APPELLANT WAS FURTHER INFORMED BY THE OFFICE ABOUT THE SCHEDULE DATE OF H EARING. 4. ON 31.03.2017 ANOTHER LETTER WAS RECEIVED FROM THE APPELLANT STATING THAT SINCE NECESSARY DETAILS REQUIRED FOR SUBMISSIONS WERE STI LL UNDER COMPILATION AND IT WOULD TAKE FURTHER TWO TO THREE DAYS SINCE FEW DOCUMENTS WERE TO BE COLLECTED FROM GOVT. AUTHORITIES THE APPELLANT WAS NOT ABLE TO ATTEND TH E HEARING. 5. IT IS NOT UNDERSTOOD HOW THE APPELLANT WAS PRE VENTED FROM ATTENDING THE HEARING FOR WANT OF SOME UNSPECIFIED RECORDS WHICH WERE CLAIMED TO BE IN THE PROCESS OF BEING COLLECTED FROM SOME UNSPECIFIED GO VT. AUTHORITIES. FOR ATTENDING THE HEARING NO SUCH DOCUMENT IS NECESSARY AND NO SU CH DOCUMENT WAS PRESCRIBED 3 ITA NO. 3391/DEL/2017 KANTI DEVI EITHER. LAW ALSO DOES NOT PRESCRIBE ANY SUCH DOCUME NT FOR ATTENDING THE HEARING. IT IS BUT OBVIOUS THAT THE APPELLANT WAS AVOIDING APPE ARING IN THE PRESENT APPEAL AND UNNECESSARY AND FRIVOLOUS EXCUSES WERE BEING PUT F ORWARD TO AVOID ENTERING APPEARANCE IN THE PRESENT APPEAL. 6. IN VIEW OF THE INABILITY OF THE APPELLANT TO C ANVASS ITS APPEAL AND SUPPORT ITS CASE, THE PRESENT APPEAL IS DISMISSED FOR NON PROSE CUTION. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY LD. CIT(A). 7. I HAVE CONSIDERED THE SUBMISSION OF LD. DR AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOT ICED THAT THE LD. CIT(A) HIMSELF ADMITTED THAT ON THE REQUEST OF THE ASSESSEE, THE C ASE WAS ADJOURNED TO 31.3.2017. HOWEVER, THE EX PARTE ORDER HAS BEEN PA SSED BY THE LD. CIT(A) ON 30.3.2017, ALTHOUGH THIS CASE WAS FIXED FOR HEARIN G ON 28.3.2017 FIRST TIME. EVEN LD. CIT(A) 1 NOIDA PUT THE DATE UNDER HIS SI GNATURE AS 30.3.2017 AND ALSO THE OFFICE SUPERINTENDANT FOR THE CIT(A), NOID A OFFICE SIGNED ON THE SAME DATE I.E. 30.3.2017. FROM THE ABOVE NARRATED FACTS, I AM OF THE CONFIRMED VIEW THAT THE ARBITRARY ACTION OF THE LD. CIT(A) IS NOT JUSTIFIED AND IS A CLEAR DENIAL OF THE JUSTICE, THE SAID ACTION CANNOT BE APPRECIATED FROM ANY ANGLE. ALTHOUGH THIS CASE DESERVE FOR AWARDING THE COST, HOWEVER, BY TAKING A LIBERAL VIEW , A WARNING IS GIVEN TO THE AUTHORITY BELOW THAT HE SH OULD NOT ACT IN SUCH AN ARBITRARILY MANNER AND HASTE. IT IS WELL SETTLED TH AT NOBODY SHOULD BE CONDEMNED UN-HEARD AS PER THE MAXIM AUDI ALTERAM P ERTAM. IN THE PRESENT CASE, THE APPEAL WAS FIXED FOR HEARING FOR 28.3.201 7 AND ON REQUEST OF THE ASSESSEE, THE CASE WAS ADJOURNED TO 31.3.2017 BUT W ITHOUT WAITING FOR THE SCHEDULED DATE OF HEARING, THE LD. CIT(A) PASSED TH E IMPUGNED ORDER IN ADVANCE ON 30.3.2017 AND DISMISSED THE APPEAL WITHO UT PROVIDING DUE AND 4 ITA NO. 3391/DEL/2017 KANTI DEVI REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND THE MATTER IS REMANDED BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AF RESH IN ACCORDANCE WITH LAW, AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25 . 09.20 17.) SD/- (N.K.SAINI) ACCOUNTANT MEMBER DATED : 25 /09/2017 *BINITA* COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 5 ITA NO. 3391/DEL/2017 KANTI DEVI DATE INITIAL 1. DRAFT DICTATED ON 18 .0 9 .201 7 2. DRAFT PLACED BEFORE AUTHOR 18 .0 9 .201 7 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.