SH. AIJAZ AHMAD BAKHSHI, ANANTNAG V. INCOME TAX OFFICER, WARD ANANTNAG, ANANTNAG

ITA 439/ASR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5739 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 29-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S NEGI LD
• Assessee Lawyers: P N ARORA LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. R.S.SYAL, VICE PRESIDENT AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.439(ASR)/2017 ASSESSMENT YEAR:201 2-13 SH. AIJAZ AHMAD BAKSHI PROP M/S T.A. ENTERPRISES PUSHO MARKET ACHABAL ADDA ANANTANG PAN:AROPB1624J VS. INCOME TAX OFFICER WARD-ANANTNAG (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (LD. ADV.) RESPONDENT BY: SH. S.S. NEGI (LD. DR) DATE OF HEARING: 21.02.2018 DATE OF PRONOUNCEMENT: 22.02.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APP ELLANT, ON FEELING AGGRIEVED AGAINST THE EX-PARTE ORDER 31.03.2017 PASSED BY THE LD. CIT(A), J&K, JAMMU, IN APPEAL NO.202/2015-16. ON TH E PREMISES THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE ISSUED BY THE A.O BUT COMPLETED THE ASSESSMENT U/S 144 OF THE I. T. ACT, 1961 AND EVEN THE NO TICE ISSUED BY OFFICE OF THE LD. CIT(A) HAS ALSO NOT BEEN ISSUED BECAUSE IT IS AN ADMITTED AND WELL KNOWN FACT THAT WHOLE AREA OF ANANTNAG IS AF FECTED BY TERRORIST ACTIVITIES, THE ASSESSEE IS CARRYING BUSINESS IN THE REMOTE AREA AND THE SAME WAS ALSO AFFECTED BY FLOOD AND WHOLE PROPERTY OF THE A PPELLANT SITUATED IN ANANTNAG IS ALSO DESTROYED BY FLOOD AND ALSO AFFECTED T HE BUSINESS, THEREFORE, ALL THESE FACTORS WERE RESPONSIBLE FOR NOT AP PEARING BEFORE THE AUTHORITIES BELOW. IT WAS ALTERNATIVELY PRAYED BY THE APPELLANT THAT IN THE INTEREST OF JUSTICE THE ORDER MAY BE SET ASIDE AND RESTO RED BACK TO THE FILE OF ITA NO.439 /ASR/2017 (A.Y.2012-13) SH. AIJAZ AHMAD BAKSHI VS. ITO 2 THE AO AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BECAUSE AO HAS ALSO PASSED ORDER U/S 144 OF THE I.T. ACT. 3. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSE SSEE HAS NOT SHOWN ANY VALID REASON FOR NONAPPEARANCE BEFORE THE LD . CIT(A) AS WELL AS BEFORE THE ASSESSING OFFICER AND THERE ARE LACHES ON THE P ART OF THE ASSESSEE/APPELLANT WHICH THE ASSESSMENT AND APPELLATE PROCEE DINGS COSTS UNDOUBTED LOSSES AND WASTAGE OF TIME OF THE QUASI JUDI CIAL AUTHORITY. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE O RDER IMPUGNED HEREIN. THE APPELLANT DID NOT BOTHER HIMSELF TO APPE AR AND CO-ORDINATE WITH APPELLATE PROCEEDINGS EVEN AFTER AFFORDING SIX OPPORTU NITIES. ALTHOUGH THE INSTANT APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT TO THE PRINCIPLE THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTIVE AND SLEEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DISPUTED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF L AW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE IS EXPRESSED IN THE MAXI M VIGILANTIBUS , NON DORMIENTIBUS , JURA SUBVENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOUR THAN AN ABSTRACT PH ILOSOPHY, THE UNINTENTIONAL LAPSE ON THE PART OF A LITIGANT SHOULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDICTION BEFORE A PARTY WHO SEEKS JUST ICE, ON ACCOUNT OF ANY MISTAKE COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIB LE TO ENTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING THE FACTS THAT THE LD. CIT(A) HAS NOT PASSED THE ORDER UNDER CHALLENGE ON MERIT. ITA NO.439 /ASR/2017 (A.Y.2012-13) SH. AIJAZ AHMAD BAKSHI VS. ITO 3 AS IN THE INSTANT CASE, THE ASSESSMENT ORDER HAS BEEN PASSED U/S 144 OF THE I.T. ACT, THEREFORE, WHILE CONSIDERED THE SITUAT ION AFFECTED BY TERRORIST ACTIVITIES AND FLOOD IN J&K, IN 2014, WE FEEL IT APPR OPRIATE TO REMAND BACK THE INSTANT CASE TO THE FILE OF THE ASSESSING OFFICER TO FRAME THE ASSESSMENT ORDER AFRESH, WHILE GIVING PROPER AND REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT, IN ORDER TO FOLLOW THE PRINCI PLE OF NATURAL JUSTICE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 .02.2018. SD/- SD/- (R.S.SYAL) (N.K.CHOUDHRY) VICE PRESIDENT JUDICIAL MEMBER DATED:22.02.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. AIJAZ AHMAD BAKSHI, ANANTANG. (2) THE INCOME TAX OFFICER, WARD- ANANTNAG (3) THE CIT(A), J&K, JAMMU. (4) THE CIT CONCERNED. (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER