Dr. Devi Sahai Pathak, Kanpur V. Income Tax Officer, Kanpur

ITA 386/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83425 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y C SRIVASTAV
• Assessee Lawyers: PRADEEP SETH
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.386/LKW/2014 ASSESSMENT YEAR:2003-04 DR. DEVI SAHAI PATHAK 2/36-A, PATEL NAGAR KANPUR V. INCOME TAX OFFICER WARD 1(1) KANPUR TAN/PAN:AJRPP4162C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. PRADEEP SETH, C.A. RESPONDENT BY: SHRI. Y. C. SRIVASTAV, D.R. DATE OF HEARING: 01 12 2014 DATE OF PRONOUNCEMENT: 05 12 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. THAT THE LEARNED C.I.T. (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL EX-PARTE FOR DEFAULT IN A SUMMARY MANNER WITHOUT ALLOWING THE ASSESSEE THE STATUTORY OPPORTUNITY OF BEING HEARD. 2. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN PROCEEDING TO DECIDE THE APPEAL EX-PARTE MERELY ON THE BASIS THAT NOTICE SENT (FINAL OPPORTUNITY) HAS NOT BEEN RESPONDED TO IN ANY MANNER WHATEVER AND THAT THE EARLIER NOTICE OR NOTICES HAVE NOT BEEN RESPONDED EITHER WITHOUT VERIFYING WHETHER THE NOTICE OR NOTICES HAD BEEN SERVED ON THE ASSESSEE, WHICH ACCORDING TO THE ASSESSEE'S RECORD WERE NEVER RECEIVED BY HIM. 3. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND :- 2 -: ON FACTS IN NOT DECIDING APPEAL ON MERIT AS REQUIRED BY LAW AND NOT STATING FACTS REGARDING EACH GROUND OF APPEAL NOR HIS DECISION ON SUCH GROUND NOR DETAILED REASONS FOR HIS DECISION IN RESPECT OF EACH GROUND AS REQUIRED BY THE PROVISIONS OF SECTION 250(6) OF THE INCOME-TAX ACT AND PRINCIPLES OF NATURAL JUSTICE. 4. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN IGNORING THE FACTS STATED IN THE ASSESSMENT ORDER AND THE STATEMENT OF FACTS FILED WITH THE MEMORANDUM OF APPEAL WHICH CONSTITUTED MATERIAL FOR DECIDING THE APPEAL. 5. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ASSESSMENT OF INCOME AT RS.3,10,600/- AS AGAINST DECLARED INCOME OF RS.77,000/- AND AGRICULTURAL INCOME OF RS.2,32,000/-. 6. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF THE A.O. IGNORING THAT THE ASSESSEE HAD RESILED FROM THE STAND TAKEN IN THE RETURN THAT AGRICULTURAL INCOME OF RS.2,32,000/- HAD BEEN EARNED BY THE ASSESSEE DURING THE ABOVE YEAR. 7. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE FOLLOWING ADDITIONS MADE BY THE A.O. S.NO. PARTICULARS AMOUNT (IN RS.) 1. INCOME FROM MEDICAL PRATICE 15,000/- 2. INCOME FROM UNDISCLOSED SOURCES U/S 69A 2,17,000/- 8. THAT THE APPELLATE ORDER IS ARBITRARY, UNJUST, EXCESSIVE, BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. :- 3 -: 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL OF THE ASSESSEE EX-PARTE AGAINST THE ASSESSEE WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER CONTENDED THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE OF HEARING FROM THE LD. CIT(A), THEREFORE, THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. CIT(A) AND HE DISMISSED THE APPEAL EX-PARTE AGAINST THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIM FOR ADJUDICATION OF THE APPEAL ON MERIT. 3. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT SERVING NOTICE OF HEARING UPON THE ASSESSEE, AS THERE IS NO FINDING IN THIS REGARD IN THE ENTIRE ORDER OF THE LD. CIT(A). HE HAS SIMPLY LISTED THE MATTER FOR HEARING AND DISPOSED OF THE APPEAL IN THE ABSENCE OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:5 TH DECEMBER, 2014 JJ:0112 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR