Sontosh Singh Reelh, Jabalpur V. Assistant Commissionor of Income Tax Circle-1(1), , Jabalpur

ITA 34/JAB/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9604 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Assessee Lawyers: MANISH MISHRA
• Keywords: Set aside
• Section: 143(3)

Judgement Text

I.T.A NO.34/JAB/2019 1 SANTOSH SINGH REELH V. ASST. CIT IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR SMC BENCH, JABALPUR BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 34/JAB/2019 ASSESSMENT YEAR: 2007-08 SHRI SANTOSH SINGH REELH, C-76, RAJUL TOWNSHIP, TILHARI, MANDLA ROAD, JABALPUR (M.P.) (PAN: AFPPR 0485J) VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), JABALPUR (M.P) (APPELLANT ) (RESPONDENT) APPELLANT BY S/SHRI SAPAN USRETHE, ADV. & MANISH MISHRA, ADV. RESPONDENT BY SHRI I.B. KHANDEL, DR DATE OF HEARING 10/7/2020 DATE OF PRONOUNCEMENT 10/7/2020 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JABALPUR ( CIT(A) FOR SHORT) DATED 09.6.2017, DISMISSING THE ASSESSEES APPEAL CONTEST ING HIS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREI NAFTER) DATED 09.11.2009 FOR ASSESSMENT YEAR (AY) 2007-08. 2.1 THE PRINCIPAL ARGUMENT OF THE ASSESSEES COUNSE L, SHRI SAPAN USRETHE, ADVOCATE, DURING HEARING WAS OF LACK OF PROPER OPPO RTUNITY BY THE FIRST APPELLATE AUTHORITY, WHO HAD PASSED AN EX PARTE ORDER QUA THE ASSESSEE-APPELLANT IN LIMINE . THE APPEAL BEFORE THE SAID AUTHORITY, HE WOULD CO NTINUE, WAS FILED AS I.T.A NO.34/JAB/2019 2 SANTOSH SINGH REELH V. ASST. CIT FAR BACK AS ON 16.11.2009, AS APPARENT FROM FORM 35 . IT CAME UP FOR HEARING FOR THE FIRST TIME ONLY ON 20.02.2017, I.E., AFTER OVER SEVEN YEARS, NOTICE FOR WHICH CAME BACK UNSERVED WITH THE COMMUNICATION THAT THE ASSESSEE HAD SOLD HIS HOUSE AND SHIFTED SOMEWHERE ELSE. ANOTHER ATTEMPT A T SERVICE (PER THE NOTICE DATED 18.5.2017) ALSO DID NOT, IN VIEW THEREOF, YIE LD ANY POSITIVE RESULT. THE LD. CIT(A) ACCORDINGLY DISMISSED THE ASSESSEES APPEAL FOR WANT OF ADVANCEMENT OF HIS CASE BEFORE HIM BY THE APPELLANT. ON BEING ASKE D BY THE BENCH AS TO HOW, THEN, THE IMPUGNED ORDER WAS COMMUNICATED TO THE AS SESSEE, IT WAS EXPLAINED BY HIM THAT IT WAS ONLY ON SHRI B.L. MISHRA, ADVOCA TE, THE ASSESSEES COUNSEL BEFORE THE REVENUE AUTHORITIES, BEING INFORMED OF T HE OUTSTANDING DEMAND AGAINST THE ASSESSEE IN VIEW OF THE IMPUGNED ORDER, DURING HIS VISIT TO THE REVENUE OFFICE IN APRIL, 2019, ADVERTING TO THE DAT E OF THE SAID COMMUNICATION IN FORM 36, I.E., 02.4.2019. THE ASSESSEE, SHRI USR ETHE ARGUED, COULD NOT HAVE ANTICIPATED A NOTICE AFTER SEVERAL YEARS. IN FACT, HE DID NOT FILE ANY RETURN OF INCOME AFTER AY 2015-16 AS HE HAD CLOSED HIS BUSINE SS DUE TO MOUNTING LOSSES AND ADVANCED AGE. 2.2 THE LD. DR, SHRI I.B. KHANDEL, WOULD RESPOND BY STATING THAT THE ASSESSEES CONDUCT IN THE MATTER IS CLEARLY NEGLIGE NT. IT WAS HIS BOUNDEN DUTY TO HAVE INFORMED THE DEPARTMENT OF HIS CURRENT ADDRESS . PREFERRING AN APPEAL DOES NOT IMPLY MERE FILING OF THE APPEAL PAPERS. THE LD. CIT(A) HAD ACCORDINGLY RIGHTLY DISMISSED HIS APPEAL FOR WANT OF PROSECUTIO N 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. CLEARLY, BOTH THE PARTIES ARE AT FAULT. THE PRIMARY RESPONSIBILIT Y FOR PROSECUTING HIS APPEAL, PRESENTING HIS CASE, I.E., AS AND WHEN IT COMES UP FOR HEARING, IS ON THE ASSESSEE- APPELLANT. THE REVENUES OBLIGATION TOWARD THIS IS TO AFFORD HIM A REASONABLE OPPORTUNITY FOR PRESENTING HIS CASE. HOW COULD, IT IS WONDERED, IT COULD DO SO WHEN THE ADDRESS PROVIDED BY THE ASSESSEE IS NOT CU RRENT AND, THUS, NOT VALID ? I.T.A NO.34/JAB/2019 3 SANTOSH SINGH REELH V. ASST. CIT AT THE SAME TIME, HOWEVER, THE REVENUE (IN THE OFFI CE OF THE FIRST APPELLATE AUTHORITY) IS OBLIGED TO, IN VIEW OF THE MANDATE OF SECTION 250(6), DECIDE THE ASSESSEES APPEAL ON MERITS, I.E., ON THE BASIS OF THE MATERIAL ON RECORD AS WELL AS EXPLANATION/S FURNISHED BEFORE THE ASSESSING AUTHOR ITY. HIS ORDER SHOULD CONTAIN THE POINTS/ISSUES ARISING FOR ADJUDICATION; THE RES PECTIVE CASE OF EITHER SIDE QUA THE SAME; AND THE BASIS OF HIS ADJUDICATION/S. IT I S ONLY IN SUCH A CASE THAT A HIGHER APPELLATE AUTHORITY COULD, IN FURTHER APPEAL , EXAMINE HIS DECISION AND ISSUE ITS ADJUDICATION/S. THE REVENUE ALSO DID NOT IN THE INSTANT CASE MAKE ANY SERIOUS ATTEMPT TO COMMUNICATE THE HEARING OF HIS A PPEAL TO THE ASSESSEE- APPELLANT, A REGULAR ASSESSEE ON THE RECORD OF THE DEPARTMENT TILL AY 2015-16. HIS RETURNS FOR LATER YEARS WOULD CONTAIN HIS CURRE NT ADDRESS, WHICH SHOULD ALSO BE KNOWN TO HIS COUNSEL, SHRI MISHRA, AS IT SUBSEQU ENTLY TRANSPIRED. A HONEST ATTEMPT AT SERVICE, EVEN IF IT PROVES TO BE INFRUCT UOUS, IS A PRE-REQUISITE TOWARD PROVIDING PROPER OPPORTUNITY OF HEARING TO THE APPE LLANT. WHY, RATHER, ONE WONDERS, SHOULD NOT THE REVENUE INSIST ON THE APPEL LANTS PROVIDING THEIR EMAIL IDS FOR COMMUNICATION PURPOSES. ACCORDING REASONABL E OPPORTUNITY FOR BEING HEARD, IT CANNOT BE OVEREMPHASIZED, IS A PRINCIPAL REQUIREMENT OF THE JUDICIAL PROCESS AND, THEREFORE, SHOULD BE, TO THE EXTENT PO SSIBLE, ENSURED, IN THE INTEREST OF JUSTICE. THE REASON FOR EXAMINING THE CONDUCT OF THE PARTIES; THE IMPUGNED ORDER BEING CLEARLY NOT IN CONFORMITY WITH SEC.250( 6) OF THE ACT, IT MAY BE CLARIFIED, IS TO SEE IF ANY COST IS IMPOSABLE ON THE ASSESSEE BEFORE THEREFORE SETTING ASIDE THE MATTER BACK TO THE FILE OF THE LD . CIT(A). I DO NOT CONSIDER IT SO IN THE FACTS AND CIRCUMSTANCES OF THE CASE, SO THAT THERE IS NO ORDER AS TO COST. 4. THE MATTER IS, IN VIEW OF THE FOREGOING, SETTING ASIDE THE IMPUGNED ORDER, RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICA TION AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE, EVEN AS ASSURED BY HIS COUNSEL D URING HEARING, EXTEND FULL COOPERATION IN THE SET ASIDE PROCEEDINGS. I DECIDE ACCORDINGLY. I.T.A NO.34/JAB/2019 4 SANTOSH SINGH REELH V. ASST. CIT 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 10, 2020 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATED: 10/7/2020 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: SHRI SANTOSH SINGH REELH, C-76, RAJU L TOWNSHIP, TILHARI, MANDLA ROAD, JABALPUR (M.P.) 2. THE RESPONDENT : ASSISTANT COMMISSIONER OF INCOME T AX, CIRCLE 1(1), JABALPUR (M.P) 3. THE CONCERNED PR. CIT 4. THE CIT(A)-1, JABALPUR 5. DR, ITAT 6. GUARD FILE