Gulab Devi Khant, Banswara V. ACIT, , Chittorgarh.

ITA 346/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4079 (ITAT-JODHPUR)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 09-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside; Audi alteram partem
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO. 346/JODH/2018 (ASSESSMENT YEAR-2004-05) SMT. GULAB DEVI KHANT, W/O LATE SHRI NATWAR LAL KHANAT, KHANTWARA, BANSWARA (RAJ.) VS THE ACIT, CHITTORGARH (APPELLANT) (RESPONDENT) REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE DATE OF HEARING 3.05.2019 DATE OF PRONOUNCEMENT 07.05.2019 O R D E R THIS IS AN APPEAL BY THE WIDOW OF THE DECEASED ASSE SSEE AGAINST THE ORDER DATED 24.4.2018 OF LD. COMMISSIONER OF INCOM E TAX (APPEALS)- 1, UDAIPUR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THE LD. COMMISSIONER APPEALS WAS SENT THE REQUIRED DOCUMENTS FOR THE APPEAL. 2 2. THE GROUNDS OF APPEAL IS AS PER THE GROUNDS FILE D FOR THE APPEAL TO THE COMMISSIONER APPEALS. 3. THE APPELLANT LADY IS A WIDOW & EARNING HER BREAD & BUTTER BY WORKING IN THE HOUSES OF OTHERS. SHE IS A MAID SERVANT. 4. SHE IS UNAWARE OF THE RULES OF THE INCOME TAX AC T AND HAD NOT DONE ANY OFFENCE. 5. THE APPELLANT RESERVES THE RIGHT TO ADD / DELETE ANY GROUNDS OF APPEAL. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSING OFFICER ISSUED NOTICED U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHO RT 'THE ACT') FOR THE REASONS THAT THE ASSESSEE HAD NOT SHOWN CAPITAL GAI N ON THE LAND SOLD FOR RS. 17,68,000/- ON 16.2.2004. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE RETURN WAS FILED ON 2.3.2006 DECLARING A LOSS OF RS . 9,91,081/-. HOWEVER, THE ASSESSMENT WAS FRAMED AT AN INCOME OF RS. 17,68 ,000/- WHICH INCLUDED THE ADDITION OF UNEXPLAINED NEW CASH CREDITORS OF R S. 15,90,000/- AND SHORT TERM CAPITAL GAIN OF RS. 64,918/-. THE ASSESSING O FFICER ALSO INITIATED PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE ACT AND LEVIED THE PENALTY OF RS. 5,47,700/-. 4. BEING AGGRIEVED, THE MATTER WAS TAKEN TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX-PARTE BY OBSERVING AS UNDER :- '2.1 THE FORM OF APPEAL BEFORE THE CIT (APPEALS) AN D TIME LIMIT FOR FILING OF APPEAL ARE LAID DOWN IN SECTION 249 OF TH E ACT. 2.2 AS PER SUB SECTION (1) OF SECTION 249, THE APPE AL SHALL BE IN THE PRESCRIBED FORM, VERIFIED IN THE PRESCRIBED MANNER, AND, IN CASE OF AN 3 APPEAL MADE TO THE CIT (APPEAL), ON OR AFTER 01.10 .1998, SHALL BE ACCOMPANIED BY FEE AS PRESCRIBED IN THE SAID SUB SE CTION. THE PRESCRIBED FORM IS FORM NO. 35, WHICH IS REQUIRED T O BE ACCOMPANIED BY COPY OF ORDER APPEALED AGAINST AND THE NOTICE OF DEMAND IN ORIGINAL. 2.3 IN THE INSTANT CASE NOTICE OF DEMAND IN ORIGINA L WAS NOT ENCLOSED WITH FORM 35. CHALLAN FOR PAYMENT OF APPEAL FEES OF RS.250/-, PAYABLE U/S 249(1), WAS ALSO NOT FILED WITH FORM 35. 3. IN VIEW OF THE DEFECTS IN FILING OF APPEAL, AS N OTED IN THE PRECEDING PARA, THE APPEAL IS PRIMA FACIE NON MAINTAINABLE. HOWEVER, IN THE INTEREST OF NATURAL JUSTICE, THE APPELLANT WAS GIVE N AN OPPORTUNITY TO REMOVE THE ABOVE DEFECTS BY VARIOUS LETTERS ISSUED DURING THE INSTANT PROCEEDINGS, DETAILS OF WHICH ARE GIVEN IN THE TABL E BELOW- S.NO. DATE OF ISSUE OF MODE OF SERVICE DATE OF SUBMISSION OF REMARKS 1. 20.05.2016 BY REG. POST WITHIN 10 DAYS OF RECEIPT NO COMPLIANCE 2. 11.10.2017 BY SPEED POST NO. ER640239308IN DT. 13.10.2017 WITHIN 5 DAYS OF RECEIPT NO COMPLIANCE 3. 20.04.2018 BY SPEED POST NO RR547663978IN DT. 20.04.2018 27.04.2018 NO COMPLIANCE BUT THE APPELLANT FAILED TO REMOVE THE DEFECTS IN T HE APPEAL FILED BY HER. IN THESE CIRCUMSTANCES, I HAVE NO OPTION BUT TO HOL D THE APPEAL NON MAINTAINABLE. FOR STATISTICAL PURPOSES, THE APPEAL WILL BE TREATE D AS DISMISSED' 5. NOW THE LEGAL HEIR OF THE DECEASED ASSESSEE IS IN APPEAL. 6. DURING THE COURSE OF HEARING, THE LD. SR. DR SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW AND THE LEGAL HEIR OF THE DEC EASED ASSESSEE MOVED AN APPLICATION FOR SEEKING THE ADJOURNMENT, HOWEVER, N O REASON HAS BEEN ASSIGNED, THEREFORE, THE SAID APPLICATION WAS REJEC TED. 4 7. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL IN LIMINE. SHE MENTIONED THAT DEFICIENCY LET TER WAS ISSUED BUT THERE WAS NO COMPLIANCE. HOWEVER, IT IS NOT MENTIONED TO WHOM THE DEFICIENCY LETTER WAS SERVED WHEN THE ASSESSEE HAS ALREADY EXP IRED. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE T HIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCOR DANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 07.05.2019) SD/- (N.K. SAINI) VICE PRESIDENT DATED : 07.05.2019 .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE 5 / BY ORDER / ASSISTANT REGISTRAR