Smt. Shobha Sharma, Hyderabad V. ADIT (Intl. Taxn)-II, Hyderabad

ITA 42/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66266 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PHANI RAJU
• Assessee Lawyers: A V RAGHURAM
• Keywords: Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.42/HYD/2012 ASSESSMENT YEAR : 2006-07 SMT. SHOBHA SHARMA, HYDERABAD. .... APPELLANT PAN:AZMPS 3447 A VS. ASST. DIRECTOR OF INCOME-TAX, HYDERABAD. RESPONDENT APPELLANT BY : SHRI A.V. RAGHURAM RESPONDENT BY : SHRI PHANI RAJU DATE OF HEARING : 30-07-2012 DATE OF PRONOUNCEMENT : 07-09-2012 ORDER PER SAKTIJIT DEY, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 21-12-2010 OF CIT (A)-V, HYDERABAD PASS ED IN ITA NO.108/ACI(IT)-II/CIT(A)-V/2010-11 AND IT PERTAINS TO THE ASSESSMENT YEAR 2006-07. 2. THE SOLE ISSUE ON WHICH THE ASSESSEE HAS CHALLEN GED THE ORDER OF THE CIT (A) IS DISMISSAL OF THE APPEAL ON THE GROUND OF DELAY IN FILING IT. 2 ITA NO. 42 OF 2012 SMT. SHOBHA SHARMA, HYD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS A NON RES IDENT INDIAN. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HER RETURN OF INCOME DECLARING A TOTAL INCOME OF RS. RS .27,02,077/- FROM LONG TERM CAPITAL GAINS. THE AO PASSED AN EX PARTE ORDER OF ASSESSMENT U/S 144 OF THE ACT ON 29-12-2008 DETERMI NING THE TOTAL INCOME OF THE ASSESSEE AT RS.27,04,108. THE ASSESSEE CHALLENGED THE ORDER OF ASSESSMENT BY AN APPEAL BEF ORE THE CIT (A). THE HEARING BEFORE THE CIT (A) TOOK PLACE ON SEVERAL OCCASIONS. THE CIT (A) ULTIMATELY PASSED HIS ORDER ON 21-12- 2010 DISMISSING THE APPEAL OF THE ASSESSEE ON THE G ROUND THAT THE APPEAL HAS BEEN FILED AFTER A DELAY OF 340 DAYS . 4. THE LEARNED AR SUBMITTED BEFORE US THAT THE AO C OMPLETED THE ASSESSMENT U/S 144 WITHOUT SERVING A NOTICE ON THE ASSESSEE. EVEN THE ASSESSMENT ORDER PASSED WAS ALSO NOT SERVE D ON THE ASSESSEE. ONLY WHEN THE ASSESSEES BANK ACCOUNT WAS ATTACHED, THE ASSESSEE ON ENQUIRY FOUND THAT AN ASSESSMENT OR DER HAS BEEN PASSED BEHIND AND BACK. IMMEDIATELY, THE ASSESSEE O BTAINED A CERTIFIED COPY OF THE ORDER AND FILED AN APPEAL WIT HIN 30 DAYS OF RECEIPT OF THE CERTIFIED COPY. THE LD. AR SUBMITTE D THAT EVEN THOUGH HEARING TOOK PLACE BEFORE THE CIT (A) ON NUM BER OF OCCASIONS, THE CIT (A) NEVER RAISED THE ISSUE OF BE LATED FILING OF THE APPEAL IN THE INSTANT CASE. THE LD. AR REQUEST ED FOR SETTING ASIDE THE APPEAL TO THE FILE OF THE CIT (A) FOR THE PURPOSE OF EXPLAINING THE DELAY ALLEGED BY THE CIT (A) IN HIS ORDER. 5. THE LEARNED DR ALSO DID NOT OBJECT FOR SUCH REQ UEST OF THE LEARNED AR. 6. AFTER HEARING THE SUBMISSIONS OF THE PARTIES AND PERUSING THE ORDER PASSED BY THE CIT (A), WE FIND THAT THE C IT (A) EVEN 3 ITA NO. 42 OF 2012 SMT. SHOBHA SHARMA, HYD. THOUGH HAS HEARD THE ASSESSEES COUNSEL ON NUMBER O F OCCASIONS HE HAS NEVER RAISED THE ISSUE OF LATE FILING OF THE APPEAL TO THE LD. COUNSEL FOR THE ASSESSEE. WE ARE THEREFORE OF T HE VIEW THAT THE ORDER PASSED BY THE CIT (A) DISMISSING THE APPE AL OF THE ASSESSEE ON THE GROUND OF LATE FILING IS IN VIOLATI ON OF RULES OF NATURAL JUSTICE. WE THEREFORE CONSIDER IT PROPER T O SET ASIDE THE ORDER PASSED BY THE CIT (A) AND RESTORE IT TO THE F ILE OF THE CIT (A) WHO SHALL AFFORD A REASONABLE OPPORTUNITY TO TH E ASSESSEE TO EXPLAIN THE DELAY, IF AT ALL, THERE IS ANY FILING T HE APPEAL AND THEREAFTER DECIDE THE ISSUE AFTER GIVING AN OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 7. FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 07-09-2012. SD/- SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 7 TH SEPT., 2012. COPY TO:- 1) C/O SRI A.V. RAGHU RAM, ADVOCATE, 610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD. 2) ASST. DIRECTOR OF IT (INTL. TAXN.)-II, 6 TH FLOOR, IT TOWERS, AC GUARDS, HYDERABAD. 3) THE CIT (A)-V, HYDERABAD 4) THE CIT CONCERNED, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABA D. JMR* 4 ITA NO. 42 OF 2012 SMT. SHOBHA SHARMA, HYD.