Sh. Sandeep Kumar, Haryana V. ITO, Hisar

ITA 3838/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0147 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 17-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Keywords: Reasonable cause; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI K.G.BANSAL K.G.BANSAL K.G.BANSAL K.G.BANSAL, AM , AM , AM , AM ITA NO. ITA NO. ITA NO. ITA NO.3838/DEL/2010 3838/DEL/2010 3838/DEL/2010 3838/DEL/2010 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2006 2006 2006 2006- -- -07 0707 07 SHRI SANDEEP KUMAR, SHRI SANDEEP KUMAR, SHRI SANDEEP KUMAR, SHRI SANDEEP KUMAR, 202, 2 202, 2 202, 2 202, 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, TODAY BLOSSOM TODAY BLOSSOM TODAY BLOSSOM TODAY BLOSSOM 1, 1, 1, 1, SECTOR SECTOR SECTOR SECTOR- -- -47, 47, 47, 47, GURGAON, GURGAON, GURGAON, GURGAON, HARYANA. HARYANA. HARYANA. HARYANA. PAN PAN PAN PAN NO.ACFPK1747K. NO.ACFPK1747K. NO.ACFPK1747K. NO.ACFPK1747K. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -4, 4,4, 4, HISAR. HISAR. HISAR. HISAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAUTAM JAIN, ADVOCATE. RESPONDENT BY : SMT.S.MOHANTY, SR.DR ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 5.3.2010 PASSED BY LEARNED CIT(A) IN THE MATTER OF AN ASSESS MENT MADE BY THE AO U/S 143(3) OF THE INCOME-TAX ACT, 1961 (T HE ACT) FOR THE AY 2006-07. 2. IN THIS APPEAL, THE ASSESSEE HAS TAKEN A GROUND THAT SINCE THE ASSESSEE HAD CHANGED HIS PLACE OF RESIDENCE FRO M HISAR TO GURGAON, NOTICE DATED 15.2.2010 FIXING THE HEARING ON 5.3.2010 BY THE LEARNED CIT(A) WAS NOT SERVED UPON THE ASSES SEE AND AS SUCH, THERE WAS SUFFICIENT CAUSE FOR NOT CAUSING AP PEARANCE ON 5.3.2010. THE LEARNED COUNSEL FOR THE ASSESSEE THU S SUBMITTED THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FRO M NOT APPEARING BEFORE THE LEARNED CIT(A) ON 5.3.2010, AS A RESULT OF WHICH, THE CIT(A) DECIDED THE APPEAL EX-PARTE. HE, THEREFORE, ITA-3838/DEL/2010 2 SUBMITTED THAT ASSESSEE BE PROVIDED ONE MORE OPPORT UNITY TO APPEAR BEFORE THE LEARNED CIT(A) TO HAVE HIS SAY IN RESPECT OF THE GROUNDS OF APPEAL TAKEN BEFORE HIM. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T LEARNED CIT(A) WAS JUSTIFIED IN PASSING THE ORDER EX-PARTE AFTER CONSIDERING THE FACTS OF THE CASE ON MERIT AS WOULD BE CLEAR FROM CIT(A)S DISCUSSION IN THE ORDER. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 5. THE LEARNED CIT(A) ISSUED A NOTICE OF HEARING ON 23.11.2009 FIXING THE HEARING OF APPEAL ON 14.12.2009. ASSESS EE MADE A REQUEST FOR ADJOURNMENT ON 14.12.2009 WHICH WAS ALL OWED BY THE CIT(A) ADJOURNING THE MATTER TO 5.1.2010. AGAIN, O N 5.1.2010, THE ASSESSEE SOUGHT ADJOURNMENT WITH A REQUEST TO A DJOURN THE HEARING TO SOME OTHER DATE. THEREAFTER, LEARNED CI T(A) ISSUED A NOTICE ON 15.2.2010 FIXING THE HEARING OF APPEAL ON 5.3.2010. THIS NOTICE ISSUED ON 15.2.2010 FIXING THE HEARING ON 5.3.2010 WAS RECEIVED BACK UNSERVED. SINCE NOTICE WAS NOT S ERVED AND NOBODY ATTENDED, THE PROCEEDINGS BEFORE CIT(A) ON 5 .3.2010 NOR ANY REQUEST FOR ADJOURNMENT WAS RECEIVED BY HIM, TH E LEARNED CIT(A) PROCEEDED TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF AVAILABLE FACTS. THE LEARNED CIT(A) FURTHER OBSERV ED THAT NO USEFUL PURPOSE WOULD LIKELY TO BE SERVED FOR FIXING THE APPEAL AGAIN AND AGAIN. FROM THESE FACTS DISCUSSED BY THE CIT(A) IN HIS ORDER, IT IS CLEAR THAT NOTICE FIXING THE HEARING O N 5.3.2010 WAS NOT SERVED UPON THE ASSESSEE BUT WAS RECEIVED BACK UNSERVED. IT ITA-3838/DEL/2010 3 IS THUS CLEAR THAT THE DATE OF HEARING FIXED ON 5.3 .2010 WAS NOT WITHIN THE KNOWLEDGE OF THE ASSESSEE. IN THE ASSES SMENT ORDER, THE ASSESSEES ADDRESS HAS BEEN GIVEN AT TILAK BAZA R, HISAR WHICH IS ALSO MENTIONED IN THE MEMORANDUM OF APPEAL FILED BEFORE CIT(A). CIT(A) ISSUED THE NOTICE TO ASSESSEES AFO RESAID ADDRESS. HOWEVER, IN THE MEMORANDUM OF APPEAL FILED BEFORE U S, THE ADDRESS OF THE ASSESSEE HAS BEEN GIVEN AT 202, 2 ND FLOOR, TODAY BLOSSOM-1, SECTOR-47, GURGAON, HARYANA. IT IS THUS C LEAR THAT THERE WAS A CHANGE OF ADDRESS OF THE ASSESSEE FROM HISAR TO GURGAON AND THAT COULD BE THE REASON THAT NOTICE CO ULD NOT BE SERVED UPON THE ASSESSEE WHEN HEARING WAS FIXED ON 5.3.2010. WE FURTHER FIND THAT ASSESSEE WAS ALSO NOT SUPPOSED TO VISIT CIT(A)S OFFICE EVERYDAY TO TAKE THE NOTE OF DATE O F HEARING DISPLAYED ON THE NOTICE BOARD OF THE CIT(A). WE, T HEREFORE, HOLD THAT THE DATE OF HEARING FIXED ON 5.3.2010 WAS NOT WITHIN THE KNOWLEDGE OF THE ASSESSEE AND THUS ASSESSEE WAS PRE VENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFO RE THE CIT(A) ON THE SAID DATE. FOR ENDS OF JUSTICE AND KEEPING IN VIEW THE FACT THAT LET THE MATTER BE DECIDED IN ITS RIGHT AND COR RECT PERSPECTIVE AFTER CONSIDERING THE ASSESSEES SUBMISSION, WE ARE INCLINED TO SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO HIM FOR FRESH DISPOSAL AFTER HEARING THE ASSESSEE. SIN CE ASSESSEE HAS CHANGED THE ADDRESS FROM HISAR TO GURGAON AND THAT HAS NOT BEEN INTIMATED BY HIM TO LEARNED CIT(A), WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LEARNED CIT(A) WITHIN THREE MO NTHS FROM THE END OF THE MONTH IN WHICH THIS ORDER IS RECEIVED BY THE ASSESSEE AND SEEK NECESSARY INSTRUCTION FROM THE LEARNED CIT (A) AS TO THE DATE ON WHICH THIS APPEAL SHALL BE FRESHLY FIXED FO R HEARING BY THE CIT(A). THE ASSESSEE SHALL NOT INDULGE INTO DIALEC TIC TACTICS AND ITA-3838/DEL/2010 4 SHALL NOT SEEK UNNECESSARY ADJOURNMENT IN THE COURS E OF FRESH APPELLATE PROCEEDINGS BEFORE THE CIT(A). WE FURTHE R DIRECT THE ASSESSEE TO COOPERATE WITH THE LEARNED CIT(A) IN DI SPOSING OF THIS APPEAL AT THE EARLIEST, IN THE ABSENCE OF WHICH, TH E LEARNED CIT(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BAS IS OF MATERIALS OR FACTS AVAILABLE ON RECORD AS PER LAW. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 17 TH MARCH, 2011. SD/- SD/- (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL (K.G.BANSAL) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 17.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ITA-3838/DEL/2010 5