Kamla Devi Agarwal through legal heir Anant Kumar Bansal, Jaipur V. ITO Ward 1(5), Jaipur

ITA 365/JPR/2023

AI Insights

The case involves an appeal by Smt. Kamla Devi Agarwal, represented through her legal heir Shri Anant Kumar Bansal, against the order of the ld. CIT(A) dated 28-03-2023 concerning the assessment year 2015-16. The primary grievances included the passing of an ex-parte order by the ld. CIT(A) without proper notice and the rejection of the appeal without adequate consideration of the facts. The assessee contested the disallowance of deductions under section 10(38) of the Income Tax Act, amounting to Rs.8,60,146, and an additional Rs.26,554 on account of alleged commission. The Tribunal noted procedural lapses in the handling of the appeal and decided to restore the case to the ld. CIT(A) for a comprehensive re-evaluation, ensuring the assessee's right to a fair hearing is upheld.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132408 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 25-09-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 31-05-2023
• Other Referred Cases: Collector, Land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Opportunity of cross examination; Condonation of delay

Judgement Text

vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, ‘’SMC” JAIPUR JhlaanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihy la-@ITA No. 365/JP/2023 fu/kZkj.ko"kZ@AssessmentYear : 2015-16 Smt. Kamla Devi Agarwal Thru: Legal Heir Shri Anant Kumar Bansal 1284, Khowalon Ka Chowk, Mahadev Johri Ki Gali, Gopal Ji Ka Rasta, Jaipur cuke Vs. The ITO Ward 1(5) Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AKNPA 2099L vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Vedant Gupta, CA jktLo dh vksjls@Revenue by: Mrs. Monisha Choudhary, Addl.CIT lquokbZ dh rkjh[k@Date of Hearing : 26/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 19 /10/2023 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the assessee is directed against the order of the ld. CIT(A) dated 28-03-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment years 2015-16 wherein the assessee has raised the following grounds of appeal. ‘’1.On the facts and circumstances of the case and in law the ld. CIT(A) grossly erred in passing ex-parte appeal order whereas no notice dated 10-03-2023 is served on the assessee. 2 ITA NO.365/JP/2023 KAMLA DEVI AGARWAL THROUGH L/H ANANT KUMAR BANSAL VS ITO, WARD 1(5), JAIPUR 2. On the facts and circumstances of the case, the ld CIT(A) grossly erred in rejecting appeal of assessee without considering the facts of the case and without giving proper opportunity of being heard to the asssessee. 3. On the facts and circumstances of the case and in law also lower authorities grossly erred in making and confirming addition of Rs.8,60,146/- by disallowing claim of deduction u/s 10(38). This action of ld. Lower authorities are wrong , unlawful & without any basis. 4. On the facts and circumstances of the case, the ld CIT(A) grossly erred in making and confirming disallowance of claim of deduction u/s 10(38) of the Act relying on the documents and evidences which are irrelevant and not related to the assessee. 5. On the facts and circumstances of the case, the AO grossly erred in not allowing the opportunity of cross examination of the persons on whose statement s reliance has been placed by the AO and also erred in not providing copy of relevant evidences. 6. On the facts and circumstances of the case, the ld Lower authorities grossly erred in making and confirming addition of Rs.26,554/- on account of alleged commission. This action of the lower authorities are also wrong , unlawful and without any basis.’’ 2.1 At the outset of the hearing, the Bench observed that there is delay of 05 days in filing the appeal by the assessee (i.e. legal heir Shri Anant Kumar Bansal) for which the legal heir Shri Anant Kumar Bansal, filed an application dated 14- 08-2023 for condonation of delay with the prayer that the delay was because of illness and to this effect the legal heir Shri Anant Kumar Bansal has filed a certificate of doctor Shri Sai Physiotherapy Centre dated 02-05-2023 and simultaneously an affidavit to the above effect. 3 ITA NO.365/JP/2023 KAMLA DEVI AGARWAL THROUGH L/H ANANT KUMAR BANSAL VS ITO, WARD 1(5), JAIPUR 2.2 During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice. 2.3 We have heard the contention of both the parties and perused the materials available on record. The crux of delay in filing of the appeal by the assessee ( i.e. legal heir Shri Anant Kumar Bansal) is because of illness which prevented him late filing of the appeal. The Bench noted that the prayer as mentioned above by the assessee for condonation of delay of 05 days, has merit and we concur with the submissions of the assessee (i.e. legal heir Shri Anant Kumar Bansal). Thus the delay occurred of 05 days in filing appeal by the assessee (i.e. legal heir Shri Anant Kumar Bansal) is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause. 2.4 Further it is also noted from the affidavit that Smt. Kamla Devi Agarwal (mother of Shri Anant Kumar Bansal) expired on 01-05-2020 for which the Shri Anant Kumar Bansal has placed on record her death certificate issued by Govt. of Rajasthan, Directorate of Economics & Statistics, JLN Road, Jaipur vide order dated 07-05-2020. Thus Shri Anant Kumar Bansal is placed on record as legal heir 2.5 The Bench has heard both the parties and perused the materials available o record including the assessment order and the appellate order. From the appellate 4 ITA NO.365/JP/2023 KAMLA DEVI AGARWAL THROUGH L/H ANANT KUMAR BANSAL VS ITO, WARD 1(5), JAIPUR order, it is noted that the ld. CIT(A) dismissed the appeal of the assessees on the issue of confirming the disallowance of Rs.8,60,146/- u/s 10(38) of the Act and also confirming the disallowance of Rs.26,554/- on account of commission. It is not imperative to repeat the facts of the case as the ld. CIT(A) has elaborately discussed the issue in his appeal but the main grievance of the assessee are as under:- (i) That the ld. CIT(A) passed an ex-parte order whereas no notice dated 10- 03-2023 is served upon the assessee. (ii) The assessee was deprived off proper opportunity to contest the case before the ld. CIT(A). (iii) The assessee was also not allowed the opportunity of cross examination of the persons by the AO The Bench does not want to intervene in the decision of the ld. CIT(A) as to confirming the disallowance so made (supra) in his order but it is imperative to see whether the assessee was served upon the notice dated 10-03-2023 which does not indicate from the order of the ld. CIT(A) that service of notice was made to the assessee and for want of adequate opportunity to the assessee by the ld. CIT(A), the appeal of the assessee is restored to the file of the ld.CIT(A) to decide it afresh but by providing adequate opportunity of hearing to the assessee and the assessee is also directed to submit all the necessary documents/ submissions before the ld. CIT(A) to settle the dispute raised in the grounds of appeal, supra. The assessee is 5 ITA NO.365/JP/2023 KAMLA DEVI AGARWAL THROUGH L/H ANANT KUMAR BANSAL VS ITO, WARD 1(5), JAIPUR also directed not to take unnecessary adjournment on frivolous ground. Hence, the appeal of the assessee is restored to the file of the ld. CIT(A) to decide it afresh as indicate hereinabove. 2.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld CIT(A) independently in accordance with law. 3.0 In the result, the appeal of the assessee is allowed for statistical purposes Order pronounced in the open court on 19 /10/2023 Sd/- Sd/- ¼lanhi xkslkbZ½ ¼jkBksMdeys'kt;UrHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 19/10/2023 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Kamla Devi Agarwal, Thru’ L/h Shri Anant Kumar Bansal 2. izR;FkhZ@ The Respondent- The ITO, Ward 1(5), Jaipur 3. vk;djvk;qDr@ The ld CIT 4. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File (ITA No.340/JP/2022) vkns'kkuqlkj@ By order, Asstt. Registrar