Narayan Lal Purbiya, Bhilwara V. ITO, Ward-4, Bhilwara

ITA 412/JODH/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4687 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONISHA
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Additional evidence; Time period of passing order; Condonation of delay; Set aside; Audi alteram partem
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCHE, SMC JODHPUR BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.412/JODH/2019 ASSESSMENT YEAR : 2011-12 SH NARAYAN LAL PURBIYA, C/O O.P.BATHEJA, D-18, ANAND VIHAR RAILWAY COLONY, JAGATPUR, JAIPUR 301017 VS. THE ITO, WARD-4, BHILWARA PAN NO: AYLPP6893M APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : SMT. MONISHA, JCIT DR DATE OF HEARING : 27.09.2021 DATE OF PRONOUNCEMENT : 27.09.2021 /ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 16.09.2019 OF LD. COMMISSIONER OF INCOME TAX (APPEALS), AJMER. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEAL OF THE ASSESSEE IS BARRED BY LIMITATION PERIOD OF 11 DAYS. THE ASSESSEE VIDE APPLICATION DATED 11.11.2019 SUBMITTED AS UNDER:- PETITION FOR CONDONATION OF DELAY OF 11 DAYS IN FILING APPEAL BEFORE THE HON'BLE ITAT. MAY IT PLEASE YOUR HONOURS. THE APPELLANT IS RESIDENT OF A SMALL VILLAGE IN BHILWARA DISTRICT.THE APPELLANT WAS NOT ASSESSED TO TAX PRIOR TO THE ASSESSMENT YEAR UNDER CONSIDERATION AS HIS INCOME WAS BELOW TAXABLE LIMIT. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2011-12, THE APPELLANT MADE TOTAL CASH DEPOSITS OF RS. 10,13,900/- IN HIS BANK ACCOUNT, ON THE BASIS OF WHICH THE LD. ITO, WARD-4,BHILWARA INITIATED PROCEEDINGS U/S. 147/148. FOR FILING THE RETURN OF INCOME AND PERSUING THE CASE BEFORE THE AO THE APPELLANT HAD ENGAGED SH. ANKIT LAKHOTIYA. AS HIS COUNSEL. HOWEVER NO PROPER COMPLIANCE WAS MADE BY HIM.. THE L- D.AO COMPLETED THE EX PARTE ASSESSMENT U/S 144 OF THE ACT TREATING THE ENTIRE BANK DEPOSITS OF RS. 10,13,900/- AS UNEXPLAINED. AGAINST THE SAID ORDER OF THE LD. AO, THE APPELLANT PREFERRED APPEAL BEFORE THE LD. CIT(A), AJMER, BEFORE WHOM ADDITIONAL EVIDENCES PROVING THE SOURCE OF BANK DEPOSITS WERE FILED. THE LD. CIT(A) FORWARDED A COPY OF THE ADDITIONAL EVIDENCES AND THE SUBMISSIONS OF THE APPELLANT TO THE AO AND CALLED FOR A REMAND REPORT FROM HIM. THE LD. AO IN HIS REMAND REPORT, AS DISCUSSED IN THE APPELLATE ORDER OF THE LD. CIT(A), STATED THAT THE SOURCE OF BANK DEPOSITS OF THE ASSESSEE WAS EXPLAINED. STILL, THE LD. CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ON THE GROUND THAT THESE WERE NOT FILED BEFORE THE AO DESPITE SUFFICIENT OPPORTUNITY, AND THE LD. CIT(A),AJMER DISMISSED THE APPEAL OF THE APPELLANT , VIDE HIS ORDER DATED 16.09.2019 WHICH WAS SERVED UPON THE ASSESSEE ON 03.10.2019. THE APPELLANT HANDED OVER THE APPELLATE ORDER TO HIS COUNSEL FOR FILING FURTHER APPEAL. THE APPELLANT WAS UNDER THE IMPRESSION THAT THE APPEAL WILL BE FILED IN TIME. BUT THE LD. COUNSEL DID NOT FILE THE APPEAL BEFORE THE HON'BLE ITAT IN TIME ON ACCOUNT OF SOME FINANCIAL AND OTHER DISPUTES WITH THE ASSESSEE. AS SOON AS THE LAPSE CAME TO THE KNOWLEDGE OF THE APPELLANT, HE CHANGED HIS COUNSEL AND ENGAGED ANOTHER COUNSEL FOR IMMEDIATE FILING OF APPEAL. THE DELAY OF 10-11 DAYS IN FILING THE APPEAL IS BEYOND THE CONTROL OF THE APPELLANT. THERE IS NO WILLFUL DEFAULT OR MOTIVE OF THE APPELLANT IN NOT FILING THE APPEAL IN TIME. THEREFORE, IT IS PRAYED THAT THE CASE OF THE APPELLANT MAY KINDLY BE CONSIDERED SYMPATHETICALLY AND THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDONED FOR THE CAUSE OF SUBSTANTIAL JUSTICE. DATED: 11.12 .2019 ( NARAYAN LAL PURBIYA, APPELLANT.) 3. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. WE, THEREFORE, PRECEDED EX. PARTE QUA THE ASSESSEE. 4. THE LD. DR OPPOSED THE APPLICATION MOVED BY THE ASSESSEE FOR CONDONATION OF DELAY. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE APPLICATION MOVED BY THE ASSESSEE, IT APPEARS THAT THE DELAY OCCURRED DUE TO THE MISTAKE OF THE THEN COUNSEL OF THE ASSESSEE WHO COULD NOT FILE THE APPEAL IN TIME ON ACCOUNT OF CERTAIN DISPUTES WITH THE ASSESSEE AND THEN CHANGED THE COUNSEL. THEREAFTER, THE APPEAL WAS IMMEDIATELY FILED. WE, THEREFORE, CONSIDERING THE SHORT PERIOD OF THE DELAY IN FILING THE PRESENT APPEAL AND THE PECULIAR FACTS OF THE CASE CONDONE THE DELAY BY TAKING A LIBERAL VIEW AND CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE AND THE APPEAL IS ADMITTED. 6. IN THE PRESENT CASE, FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF INITIATION OF PROCEEDINGS U/S 147/148 OF THE I.T.ACT,1961. 2. THE LD. CIT(A) HAS GROSSLY ERRED ON FACTS AND IN LAW IN NOT ADMITTING THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE WHICH GO TO THE ROOT OF THE MATTER FOR DECIDING THE APPEAL AND WHICH COULD NOT BE FILED BEFORE THE LD. AO FOR WANT OF SUFFICIENT OPPORTUNITY OF BEING HEARD. 3. THE LD. CIT(A) ERRED IN HOLDING THAT SUFFICIENT OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE BY THE LD. AO FOR COMPLETING EXPARTE ASSESSMENT U/S 147/144 OF THE ACT. 4. THE LD CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.10,13,900/- PARTICULARLY WHEN THE LD. AO IN HIS REMAND REPORT SUBMITTED TO THE LD. CIT(A) HAS STATED THAT THE SOURCE OF BANK DEPOSITS IS EXPLAINED. 5. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL OF THE APPELLANT ON CHARGABILITY OF INTEREST U/S 234A OF THE ACT. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL. ALL THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 7. THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EX.PARTE ORDERS PASSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A). THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSING OFFICER FRAMED AT AN INCOME OF RS. 10,13,900/- THE ASSESSMENT VIDE ORDER DT 27.11.2018 BY PASSING EX.PARTE ORDER U/S 147 READ WITH SECTION 144 OF THE INCOME TAX ACT, 1961. 8. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY PASSING THE IMPUGNED ORDER EX. PARTE. THE LD. CIT(A) MENTIONED THAT ASSESSEE FURNISHED THE WRITTEN SUBMISSIONS IN DAK. HOWEVER, NOWHERE IT IS MENTIONED THAT OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE ASSESSEE. EVEN IT IS NOT MENTIONED THAT THE NOTICE OF HEARING WAS ISSUED. 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 THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 27. 09.2021) SD/- ( N.K. SAINI) VICE RESIDENT RKK DATE: 27.09.2021 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