Neha Katyal, Maharashtra V. DCIT Circle-2, Noida UP

ITA 4621/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8966 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.4621/DEL./2019 ASSESSMENT YEAR: 2010-11 MRS. NEHA KATYAL, 50/402, NRI, COMPLEX SECTOR 54, 56, 58, SEAWOODS ESTATE, SEAWOODS, NAVI MUMBAI, THANE, MAHARASHTRA VS. DCIT, CIRCLE-2, NOIDA PAN :AOIPK3889B (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 31/08/2018 PASSED BY THE LD. CIT(APPEALS)-I, NOIDA [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2010-11 RAISING FOL LOWING GROUNDS: 1) THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN UPHOLDING THE REOPENING OF THE CASE U/S 148 BY THE LD. ASSESSING OFFICER AS THE REASSESSMENT IS BAD IN LAW. THEREFOR E, THE ORDER PASSED BY THE HONBLE CIT (A) IS LIABLE TO BE SET A SIDE. APPELLANT BY NONE RESPONDENT BY SHRI S.S. NEGI, SR.DR DATE OF HEARING 11.01.2021 DATE OF PRONOUNCEMENT 11.01.2021 2 ITA NO.4621/DEL./2019 2) A) THE HONBLE COMMISSIONER OF INCOME TAX (APPE ALS) HAS ERRED IN UPHOLDING THE ORDER PASSED BY THE LD ASSESSING OFFI CER U/S 147/144 OF INCOME TAX ACT, 1961 WITHOUT GIVING AN O PPORTUNITY TO THE ASSESSEE TO FURNISH DETAILS AS THE NOTICE FOR R EASSESSMENT WAS NOT SERVED TO THE ASSESSEE. B) THE APPELLANT PRAYS THAT THEREFORE THE ORDER PAS SED BY THE HONBLE. CIT (A) IS LIABLE TO BE SET ASIDE AS IT IS AGAINST THE PRINCIPLES OF LAW AND NATURAL JUSTICE. 3) A) THE HONBLE COMMISSIONER OF INCOME TAX (APPE ALS) HAS ERRED IN UPHOLDING THE ADDITION MADE BY THE LD. ASSESSING OF FICER IN APPELLANTS HANDS AS THE SAME WAS ALREADY OFFERED T O TAX IN HER HUSBANDS HANDS IN THE SAID ASSESSMENT YEAR. B) THE APPELLANT PRAYS THAT THEREFORE THE ORDER PAS SED BY THE HONBLE. CIT (A) IS LIABLE TO BE SET ASIDE AS IT IS AGAINST THE PRINCIPLES OF LAW AND NATURAL JUSTICE. 4) THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN STATING IN HIS ORDER THAT ONLY FORM 35 IS AVAILABLE ON THE DEPARTMENTAL WEBSITE. WHEREAS THE ASSESSEE HAS SUBM ITTED ALL REQUISITE DOCUMENTS AS A PART OF MISCELLANEOUS ATTA CHMENT OPTION AVAILABLE WHILE FILING THE APPEAL ON THE DEPARTMENT AL WEBSITE. THE SAME ARE ALL VISIBLE ON THE PORTAL. THEREFORE, THE ORDER IS PASSED BY THE HONBLE CIT (A) IN A VERY CASUAL MANNER AND IS LIABLE TO BE SET ASIDE. 5) THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN PASSING THE ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY TO TH E ASSESSEE SINCE NO NOTICES FIXING THE DATE OF THE HEARING WER E SERVED UPON THE ASSESSEE EITHER PHYSICALLY OR ELECTRONICALLY UP ON THE ASSESSEE, THEREFORE THE ORDER PASSED BY THE HONBLE. CIT (A) IS LIABLE TO BE SET ASIDE. 6) THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN STATING IN HIS ORDER THAT THE NOTICES WERE SENT TO THE ADDRESS MENTIONED IN FORM 35 BY THE ASSESSEE. THE ADDRESS QUOTED IN THE ORDER BY THE HONBLE CIT (A) THEREOF AND THAT ACTUALLY MENTIONED BY THE ASSESSEE IN THE FORM 35 FOR THE PURPOSE OF SERVING THE NOTICES ARE DIFFERENT. THEREFORE, THE ORDER IS PASSED BY THE HO NBLE CIT (A) IN A VERY CASUAL MANNER AND IS LIABLE TO BE SET ASIDE. 7) THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE FACT THE APPEAL FEES OF RS. 1000/- WAS ALREADY PAID BEFORE FILING OF APPEAL BEFORE THE GOOD-SELF A ND CHALLAN FOR THE SAME WAS ALREADY SUBMITTED AT THE TIME OF FILIN G THE APPEAL AND HAS, YET STATED THAT THE REQUISITE FEES HAS NOT BEEN PAID. THEREFORE, THE ORDER IS PASSED BY THE HONBLE CIT ( A) IN A VERY CASUAL MANNER AND IS LIABLE TO BE SET ASIDE. 8) THE APPELLANT PRAYS TO ADD, AMEND 85 ALTER ABOV E MENTIONED GROUNDS OF APPEAL. 3 ITA NO.4621/DEL./2019 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESSME NT IN THE CASE WAS REOPENED BY WAY OF ISSUE OF NOTICE UNDER S ECTION 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) ON 31 /03/2017 IN VIEW OF THE CASH DEPOSIT IN BANK ACCOUNT. NO COMPLI ANCE WAS MADE BY THE ASSESSEE OF NOTICE UNDER SECTION 148 OF THE ACT AS WELL AS SUBSEQUENT NOTICES ISSUED UNDER SECTION 142 (1) OF THE ACT. HENCE, THE ASSESSMENT WAS COMPLETED AS BEST JUDGMEN T ASSESSMENT UNDER SECTION 144 OF THE ACT ON 24/11/20 17 AFTER MAKING ADDITION FOR CASH DEPOSITS OF 10,72,360/-. 2.1 AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD . CIT(A), BUT NOTICES ISSUED BY THE LEARNED CIT(A) TO THE ASS ESSEE AND SENT BY POST WERE RETURNED BACK WITH THE REMARK THAT THE ASSESSEE LEFT THE PREMISES. THE LD. CIT(A) HELD IT TO BE A VALID SERVICE AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ANY DE CISION ON MERIT. NO EVIDENCE WAS ALSO FILED BY THE ASSESSEE F OR PAYMENT OF THE APPEAL FEE. AGGRIEVED WITH THE FINDING OF THE L D. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL, RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. BEFORE US, NONE ATTENDED ON BEHALF OF THE ASSESSEE AND THUS, THE APPEAL IS DECIDED ON THE BASIS OF THE ARGUMENTS BY LEARNED DR. 4. WE HAVE HEARD SUBMISSION OF THE LEARNED DR AND PER USED RELEVANT MATERIAL ON RECORD INCLUDING ORDER OF THE LOWER AUTHORITIES. WE FIND THAT THE LD. CIT(A) HAS DISMIS SED THE APPEAL OF THE ASSESSEE DUE TO NON-REPRESENTATION BY THE AS SESSEE, WITHOUT GIVING ANY REASON FOR ARRIVING DECISION ON MERIT. IN OUR OPINION, IN TERMS OF SECTION 250(6) OF THE ACT, THE LD. CIT(A) IS REQUIRED TO PASS A REASONED ORDER ON MERIT OF THE I SSUE-IN-DISPUTE 4 ITA NO.4621/DEL./2019 DESPITE NO-REPRESENTATION BY THE ASSESSEE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE FINDING OF THE LEARNED CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING AFRESH, AFTER PROVIDING ADEQUATE OPPORTUNI TY OF BEING HEARD TO BOTH THE ASSESSEE AND THE ASSESSING OFFICE R. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE ARE ALLOWED FOR S TATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH JANUARY, 2021. RK/- (D.T.D.S.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI