Sanjay Sharma, New Delhi V. ITO, Ward- 44(1), New Delhi

ITA 4591/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1660 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4591/DEL/2018 (ASSESSMENT YEAR-2010-11) SANJAY SHARMA C-54, GUJRANWALA APARTMENT, BLOCK-J, VIKASPURI, NEW DELHI. PAN NO. AHCPS8326E (APPELLANT) VS ITO WARD 44(1), NEW DELHI. (RESPONDENT) APPELLANT BY SHRI P.C. YADAV, ADVOCATE RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE IMPUGNED ORDER DATED 27.04.218 OF THE LD. CIT(A), N EW DELHI RELEVANT TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWIN G GROUNDS: GROUND NO. 1 IN ITS IMPUGNED ORDER, THE CIT(APPEAL) HAS RELIED O N THE INFORMATION AVAILABLE WITH ASSESSING OFFICER AND HAS PASSED THE ORDER DISMISSING THE APPEAL FIELD BY THE AGGRIEVED ASSESSEE BEFORE THE CIT(APPEAL). AS PER SECTION 250(6) OF THE INCOME TAX ACT, 1961, TH E CIT(A) SHOULD DISPOSE OF THE APPEAL IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION OF THE DECISION THEREON AND THE REASON FOR SUCH DETERMINATION. CIT(APPEALS) HAVE NOT DECIDED THE APPEAL ON MERIT. HE HAS NOT GONE THROUGH THE GROUNDS OF APPEALS FILED A ND HAS GIVEN NO FINDINGS ON THE GROUNDS OF APPEAL. THEREFORE, THE MANDATE OF THE STATUS IS THAT THE CI T(A) HAS TO GIVE HIS FINDINGS ON MERITS ON THE BASIS OF MATE RIAL INFORMATION AVAILABLE WITH THE ASSESSING OFFICER EV IDENT DATE OF HEARING 22/11/2018 DATE OF PRONOUNCEMENT 22/11/2018 ITA NOS. 4591/D/2018 A.Y. 2010-11 SANJAY SHARMA 2 PRESENTED BY THE ASSESSEE TO BE CONSIDERED. THERE IS NO EXCEPTION PROVIDED FOR EX PARTE ORDER. A REASONED O RDER BASED ON THE MERITS OF THE CASE IS PRE REQUISITE FO R THE DISPOSAL OF AN APPEAL. THEREFORE, THE LD. CIT(A) H AS ERRED IN PASSING THE ORDER EX PARTE WITHOUT GIVING THE AS SESSEE A REASONABLE OPPORTUNITY TO ARRANGE AND PRESENT THE DOCUMENTS. GROUND NO. 2 IN ITS IMPUGNED ORDER, THE CIT(APPEALS) HAS PLACED RELIANCE UPON THE JUDGMENT OF THE APEX COURT IN THE CASE OF B.N. BHATTARCHARJI AND ANOTHER (118 ITR 461) (AT PAGES 477 AND 478) THAT IN CASES WHERE THE ASSESSEE DOES NOT WANT TO PURSUE THE APPE AL, APPELLATE AUTHORITIES HAVE INHERENT POWER TO DISMIS S THE APPEAL FOR NON-PROSECUTION. A QUASI-JUDICIAL AUTHORITY IS EXPECTED TO DELIVER JU STICE IN ALL CIRCUMSTANCES AND NOT BE WEIGHED DOWN BY RIGORS OF PROCEDURES AND ANY OTHER TECHNICALITY. THE CONTENT ION THAT ASSESSEE IS NOT INTERESTED IS INCORRECT AS ASSESSEE FIELD THE APPEAL BEFORE THE CIT(A) AGAINST THE ORDER OF THE AS SESSING OFFICER. MEANWHILE, THE ASSESSEE GOT ILLNESS AND D UE TO MEDICAL REASON THE ASSESSEE WAS NOT ABLE TO APPEAR ON THE ADJOURNED DATE. THERE WAS SUFFICIENT CAUSE FOR NON- APPEARANCE AND COULD BE VERIFIED WITH MEDICAL CERTI FICATE. IT IMPLIES THAT, ASSESSEE IS MENTALLY PREPARED TO G O FOR THE APPEAL AND IS EFFECTIVELY PURSUING IT. THEREFORE, RELIANCE PLACED BY THE LD. CIT(A) IS NOT CORRECT AND THIS AL SO DEFEATS THE PURPOSE ENSHRINED IN THE PRINCIPLES OF NATURAL JUSTICE WHEREBY BOTH THE PARTIES SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. GROUND NO. 3 IN ITS IMPUGNED ORDER, THE ASSESSING OFFICER (ITO) H AD COMPUTED THE INCOME AT RS. 12,71,500/- ON ACCOUNT OF CASH DE POSIT IN SAVING BANK ACCOUNT AND ON ACCOUNT OF OTHER RECEIPT ON THE GROUND THAT ASSESSEE HAS NOT FILED THE RETURN OF IN COME. THE METHOD OF COMPUTATION ADOPTED BY THE ASSESSING OFFICER IS NOT CORRECT AND IS AT THE FANCY DESIRE O F THE LD. ASSESSING OFFICER. THE AGGRIEVED ASSESSEES GROSS T OTAL INCOME DO NOT EXCEED THE MAXIMUM AMOUNT WHICH IS NO T CHARGEABLE TO TAX. THEREFORE, THE ASSESSEE IS NOT REQUIRED ITA NOS. 4591/D/2018 A.Y. 2010-11 SANJAY SHARMA 3 TO FILE THE RETURN AND ADDITION MADE FOR RS. 12,71, 500/- SHOULD BE DELETED. FURTHER, PROPER OPPORTUNITY OF BEING HEARD HAS NOT BEEN GIVEN TO THE ASSESSEE AND WHOLE CASH DEPOSIT WAS CONSIDERED AS INCOME OF THE ASSESSEE AND ASSESSED T HE INCOME U/S 144 BY PASSING EX PARTE ASSESSMENT ORDER . 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT REVENUE AUTHORITIES HAVE PASSED THE EX PARTE ORDERS WITHOUT HEARING THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE WHIC H IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. HE SUBMITTED THA T ASSESSEE IS AN OLD LADY AND SUFFERING FROM CARDIAC PROBLEMS, HER DAUGH TER WAS ALSO SUFFERING FROM DENGUE AT THAT POINT OF TIME AND COU LD NOT APPEAR BEFORE THE REVENUE AUTHORITIES. HE REQUESTED THAT MATTER MAY BE SET ASIDE DENOVO TO THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AS PER LAW. HE ALSO UNDERTAKES TO COOPERATE IN THE AS SESSMENT PROCEEDINGS AND ALSO UNDERTAKE TO FILE DETAILS REQU IRED BY THE ASSESSING OFFICER. LD. DR HAS NOT RAISED ANY OBJEC TION ON THE REQUEST OF THE LD. COUNSEL FOR ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES, I AM OF THE VIEW THAT EX PARTE ORDERS HAVE BEEN PASSED BY THE REVENUE AUTHORITIES AGAINST THE ASSESSEE, HOWEVER, THE REASONS MENTIONED BY THE LD. COUNSEL FOR THE ASSESSEE REGARDING NON-APPEARANCE BEFORE THE REVENU E AUTHORITY IS THE ILLNESS OF THE ASSESSEE AND AS WELL AS HER DAUG HTER IS ALSO SUFFERING FROM DENGUE AT THAT POINT OF TIME BELIEVI NG THE STATEMENT ITA NOS. 4591/D/2018 A.Y. 2010-11 SANJAY SHARMA 4 MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE A O TO MAKE THE FRESH ASSESSMENT AS PER LAW AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE AND DIRECT THE ASSESSEE THROUGH HER COUNSEL TO APPE AR BEFORE THE ASSESSING OFFICER ON 14.02.2019 AT 10.00 A.M. THER E IS NO NEED TO ISSUE NOTICE BY THE ASSESSING OFFICER TO THE ASSESS EE FOR 14.02.2019 BECAUSE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN T HE PRESENCE OF BOTH THE PARTIES. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22.11.2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 22/11/2018 *KAVITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI ITA NOS. 4591/D/2018 A.Y. 2010-11 SANJAY SHARMA 5 DATE 1. DRAFT DICTATED ON 22.11.2018 2. DRAFT PLACED BEFORE AUTHOR 22.11.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 22.11.2018 6. ORDER PRONOUNCED AND UPLOADED 26.11.2018 7. FILE SENT TO THE BENCH CLERK 26.11.2018 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.