Smt. Pushpa Ordia, Bhilwara V. ITO,Ward-5, Bhilwara

ITA 46/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6595 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 16-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 143(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 46/JODH/2018 (ASSESSMENT YEAR-2013-14) SMT. PUSHPA ORDIA, 16/41, NEAR SESSION COURT, RAILWAY STATION ROAD, BHILWARA VS THE ACIT, CIRCLE-1, AJMER (APPELLANT) (RESPONDENT) PAN: AAFPO3069A REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE (WRITTEN SUBMISSIONS OF SH. M. GARGIEYA,ADV) DATE OF HEARING 30.04.2019 DATE OF PRONOUNCEMENT 30.04.2019 O R D E R PER N. K. SAINI, V.P. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 01.11.2017 OF LD. COMMISSIONER OF INCOME TAX (APPEA LS), AJMER. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 2 THE IMPUGNED ADDITIONS AND DISALLOWANCES MADE IN THE ORDER U/S 147/143(3) OF THE ACT DATED 17.01. 2017 ARE BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT O F JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME KINDLY BE DELETED. THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN DECIDING THE APPEAL EX PARTE WITHOUT AFFORDING ADEQUATE AND REASONABLE OPPORTUNITY OF BE ING HEARD. THE IMPUGNED ORDER HAVING BEEN PASSED IN GRO SS BREACH OF NATURAL JUSTICE, KINDLY BE QUASHED. RS.3,25,345/-: THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE DISAL LOWANCE OF EXPENSES OF RS.3,25,345/- CLAIMED. THE DISALLOWA NCE SO MADE AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CO NTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AN D HENCE, THE ADDITION KINDLY BE DELETED IN FULL. THE ID. AO FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING INTEREST U/S 234A, 23 4B & 234C OF THE ACT. THE APPELLANT TOTALLY DENIES ITS L IABILITY OF CHARGING, THE INTEREST, SO CHARGED, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN F ULL. THE APPELLANT PRAYS YOUR HONOUR INDULGENCES TO ADD, AMEND OR ALTER OF OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 3. VIDE GROUND NO.2 THE GRIEVANCE OF THE ASSESSEE RELA TES TO THE EX- PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT AFFORD ING ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD. 4. FACTS OF THE CASE IN BRIEF THAT THE ASSESSEE E-FIL ED THE RETURN OF INCOME ON 11.3.2015 DECLARING AN INCOME OF RS. 3,51 ,650/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 [I N SHORT' THE ACT'] 3 LATER ON, NOTICE U/S 148 OF THE ACT WAS ISSUED ON T HE BASIS OF INFORMATION RECEIVED FROM THE DEPARTMENT. THE ASSE SSING OFFICER FRAMED THE ASSESSMENT AT AN INCOME OF RS. 6,86,990/ - BY MAKING THE ADDITIONS UNDER THE HEAD INCOME FROM OTHER SOURCES ON ACCOUNT OF INTEREST FROM THE BANK. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE ASSESSING OF FICER BY OBSERVING AS UNDER:- 2.0 DURING THE COURSE OF APPELLATE PROCEEDINGS, T HE APPEAL WAS FIXED FOR HEARING ON 05.09.2017, 26.09.2017, 09 .10.2017 AND 01.11.2017. NO ONE HAS ATTENDED ON ANY OF THE DATE OF HEARING AND NO WRITTEN SUBMISSION HAS BEEN FILED. THEREFORE , THE APPEAL IS DECIDED AFTER GOING THROUGH THE ASSESSMENT ORDER AND GROUNDS OF APPEAL AS UNDER. 3.0 THE APPELLANT HAS RAISED FOLLOWING GROUNDS OF APPEAL: 7. DISALLOW THE EXPENSES OF RUPEE 325345/- IS BAD IN LAW AND FACTS BECAUSE ASSESSEE PAID INTEREST AND OTHER EXPENSE TO THE PARTY DURING THE YEAR HENCE PLEASE DELETE THE ADDITION MADE BY THE ITO. 3.1 THIS GROUND OF APPEAL RELATES TO DISALLOWAN CE OF DEDUCTION OF RS. 3,25,345/- MADE BY THE AO OF THE EXPENSES CL AIMED BY THE APPELLANT U/S 57. THE APPELLANT EITHER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS OR APPELLATE PROCEEDINGS HAS NOT FURNISHED ANY EVIDENCE TO SHOW THAT THE EXPENSES RS . 3,25,341/- WERE INCURRED BY HER FOR EARNING THE INTEREST INCOM E OF RS. 6,95,772/-. HENCE, THE DISALLOWANCE MADE BY THE AO OF THE EXPENSES OF RS. 3,25,341/- CLAIMED BY THE APPELLANT U/S 57 4 AGAINST THE INTEREST INCOME OF RS. 6,95,772/- IS HE REBY CONFIRMED. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE O BSERVATIONS MADE BY THE AUTHORITIES BELOW AND STRONGLY SUPPORTE D THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, HOWEV ER, WRITTEN SUBMISSIONS HAVE BEEN FURNISHED STATING THEREIN AS UNDER:- 1.1. IT IS SUBMITTED THAT NO REAL AND ADEQUATE OPPORTUNITY OF BEING HEARD WAS EVER PROVIDED BY THE ID. CIT(A) IN AS MUCH AS THE APPELLANT NEVER GOT ANY NO TICE OF HEARING NOR ANY COMMUNICATION AS REGARDS ANY OF THE DATES OF FIXATION FOR HEARING AS ALLEGED BY THE ID. CIT(A). 1.2 IN THE IMPUGNED ORDER THE ID. CIT(A) HAS ALLEGE D THAT THE APPEAL WAS FIXED FOR HEARING ON 05.09.2017 , 26.09.2017, 09.10.2017 AND 01.11.2017. NO ONE HAS ATTENDED ON ANY OF THE DATE OF HEARING AND NO WRITT EN SUBMISSION HAS BEEN FILED. BUT SUCH ALLEGATIONS ARE ABSOLUTELY WITHOUT GIVING ANY DETAIL OF THE ADDRESS WHERE, THE NOTICE(S) WERE SENT. ALSO THERE IN NO ASSERTION (NO DETAILS) IF NOTICES IF ANY, SENT THROUGH REGISTERED AD AND THE ACKNOWLEDGEMENT DULY SIGNED IF AVAILABLE ON REC ORD OR THAT THE ENVELOPE HAS NOT COME BACK. 2.1 IT APPEARS THAT THE NOTICE/S OF HEARING HAVE B EEN SENT AT WRONG / INCOMPLETE ADDRESS. HENCE IT IS DIFFICUL T TO BELIEVE THAT AT SUCH WRONG / INCOMPLETE ADDRESS NOT ICE COULD HAVE BEEN SERVED. OTHERWISE THERE IS NO ASSER TION IN 5 THE ENTIRE ORDER THAT EVEN A SINGLE NOTICE OF HEARI NG COULD BE SERVED UPON THE ASSESSEE OR ITS A/R. 2.2 IT IS SURPRISING TO NOTE THAT THOUGH THE ADDR ESS OF THE APPELLANT WAS AVAILABLE ALONG WITH MOBILE NO. 94132 - 12866, WHICH, BELONGED TO THE ASSESSEE. MOREOVER, I N COLUMN NO. 17 A NEW ADDRESS OF COUNSEL OF THE ASSES SEE HAS BEEN PROVIDED I.E. C/O DALPAT SINGH SETHIA, ADV OCATE, OPP. SESSION COURT, BHILWARA AS WAS ASKED IN THE FO RM- 35. UNFORTUNATELY, HOWEVER NO NOTICE WAS EVER RECEI VED UPON THIS ADDRESS OR AT THE ADDRESS OF THE ASSESSEE , WHICH WAS GIVEN IN FORM-35, 2.3. THUS, ABSOLUTELY NO NOTICE (OR INTIMATION) A T AIL WAS RECEIVED BY THE ASSESSEE OR ANY ONE AUTHORIZED BY H IM ON THIS BEHALF OR EVEN BY THE ID. AR OR EVEN BY ANYBOD Y ELSE SO AS TO INFORM THE ASSESSEE OF THE FIXATION OF ANY ONE OR MORE DATE(S) OF HEARING. 3. IT IS FURTHER SUBMITTED THAT WHEN THERE WAS NO R ESPONSE ON THE FIRST AND/OR FOUR OCCASIONS, THE ID. CIT (A) COULD HAVE DIRECTED HIS OFFICE TO ENSURE THE SERVICE OF T HE NOTICE UPON THE ADDRESS GIVEN IN FORM NO. 35 ONLY WHICH WA S MEANT FOR THIS PURPOSE ONLY BUT THERE APPEARS NO SU CH ATTEMPT MADE IN HIS ORDER. 4. THUS, NO NOTICE HAVING BEEN EVER RECEIVED BY TH E ASSESSEE HE COULD NOT HAVE BEEN BLAMED FOR NON- APPEARANCE OR NOT TAKING INTEREST. THE APPELLANT HA VING PAID THE APPEAL FILING FEE AND ALSO ENGAGED A COUNS EL, WAS FULLY INTERESTED IN GETTING THE MATTER DISPOSED OF. OTHERWISE ALSO IT IS NOT THE CASE WHERE MANY OPPORT UNITIES WERE GRANTED BY THE CIT (A). THESE SUBMISSIONS HAVE BEEN MADE AS INSTRUCTED BY T HE CLIENT. 6 UNDER THESE CIRCUMSTANCES THE ID. CIT(A) SERIOUSLY ERRED IN PASSING THE IMPUGNED ORDER IN A GREAT HASTE AND EX- PARTE WHICH WAS A CLEAR VIOLATION OF PRINCIPLE OF N ATURAL JUSTICE AS OPPORTUNITY OF BEING HEARD WAS CLEARLY D ENIED. HENCE, TO DO SUBSTANTIAL JUSTICE, THE APPEAL KINDLY BE DECIDED IN FAVOUR OF ASSESSEE OR ALTERNATIVELY REST ORED TO THE FILE OF THE LD. CIT(A). 9 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTI ES AND MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT THE LD. CI T(A) ALTHOUGH STATED THAT THE CASE WAS FIXED FOR HEARING ON VARIOUS DATE S AND LAST ONE WAS 1.11.2017 BUT NOWHERE IT IS STATED THAT THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT (A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 30.04.2019) SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED :.30.04.2019 .. / COPY OF THE ORDER FORWARDED TO : 7 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR