Heena Mukesh Varnava, JAMNAGAR V. The Income Tax Officer, Ward-2(1), JAMNAGAR

ITA 497/RJT/2012

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1197 (ITAT-RAJKOT)
• Duration Of Justice: 7 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUHAJ MISTRY
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 143(3); 191

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO. 497/RJT/2012 (ASSESSMENT YEAR : 2008-09) HEENA MUKESH VARANAVA DHUNVAV, P.O JAMBUDA, JAMNAGAR VS. THE ITO WARD-2(1), JAMNAGAR [PAN NO. AET PV0 164 P] (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE (WRITTEN SUBMISSION) RESPONDENT BY : SHRI SUHAJ MISTRY, SR. D.R. DATE OF HEARING 14.10.2019 DATE OF PRONOUNCEMENT 18.12.2019 O R D E R PER MS. MADHUMITA ROY JUDICIAL MEMBER: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 16.12.2011 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), JAMNAGAR ARISING OUT OF THE ORDER DATED 22.11.2010 PASSED BY THE ITO , WARD 2(1), JAMNAGAR UNDER SECTION 143(3) R.W.S 144 OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FOR THE ASSESSMENT YEAR (A.Y.) 2008-09. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF CALL. HOWEVER, A WRITTEN NOTES OF SUBMISSION HAS BEEN FILED ON BEHALF OF THE ASSESSEE. THE LD. DR IS PRESENT BEFORE US. WE, THEREFORE, DECIDED TO PROCEED IN TH E MATTER ON THE BASIS OF SUCH WRITTEN - 2 - ITA NO.497/RJT/2012 HEENA MUKESH VARANAVA VS. ITO ASST.YEAR 2008-09 NOTES OF SUBMISSION ON BEHALF OF THE ASSESSEE. IT APPEARS FROM THE RECORDS THAT AN APPLICATION OF CONDONATION OF DELAY, HAS ALSO BEEN FILED ON BEHALF OF THE ASSESSEE WITH A PRAYER FOR CONDONING THE DELAY OF 191 DAYS IN FIL ING THE APPEAL BEFORE. WE HAVE PERUSED THE GROUNDS AS EXPLAINED BY THE ASSESSEE. THE ASSESSEE BEING AN OLD AGED LADY HAVING OCTOGENARIAN MOTHER, FATHER ALREADY EXP IRED, FAILED TO GET PROPER GUIDANCE TO TAKE STEPS IN RESPECT OF THE ORDER IMPUGNED PASS ED BY THE LD. CIT(A) IN DUE TIME WHICH ACCORDING TO US APPEARS TO BE GENUINE AND HEN CE THE DELAY IS CONDONED. THE CRUX OF THE MATTER IS THIS THAT THE ASSESSEE F ILED ITS RETURN OF INCOME ON 09.09.2009 DECLARING TOTAL INCOME AT RS. 60/- AND A GRICULTURAL INCOME OF RS. 4,28,000/-. IN THE COURSE OF SCRUTINY ASSESSMENT THE AO ALLEGED THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE INCOME FROM AGRICULTURAL ACTIVITY. THE AO ACCORDINGLY DENIED TAX BENEFIT AVAILABLE TO AGRICULTURAL INCOME AND TREATED THE SAID AMOUNT OF RS. 4,28,060/- AS INCOME CHARGEABLE TO TAX. IT FURTHER APPEARS FROM THE RECORDS THAT DURING THE APPELLATE PROCEEDING THE ASSESSEE DULY FILED TH E REQUISITE PAPERS BY WAY OF ADDITIONAL EVIDENCE NAMELY THE BILLS ISSUED BY THE PURCHASING PARTY TO SUBSTANTIATE HER CLAIM FOR AGRICULTURAL INCOME ALONG WITH WRITTEN SU BMISSION. HOWEVER, THE SAME WAS NOT FOUND ACCEPTABLE AT THE APPELLATE STAGE BY THE LD. CIT(A). HE, THEREFORE, CONFIRMED THE SAID ADDITION. 3. AS IT APPEARS FROM THE DOCUMENTS PARTICULARLY TH E ORDER PASSED BY THE LD. CIT(A) THAT THE ADDITIONAL EVIDENCES WERE DULY PLAC ED BEFORE HIM BY THE ASSESSEE FOR ADJUDICATION OF HER APPEAL ON MERIT ON ITS PROPER P ERSPECTIVE THROUGH THE LD. CIT(A) REJECTED THE SAME TAKING THE SHELTER OF THE PROVISI ON OF RULE 46A OF THE I.T. RULES. IN THIS REGARD, WE WOULD LIKE TO OBSERVE THAT THE CANO N PRINCIPLE OF NATURAL JUSTICE IS THIS THAT NONE SHOULD BE CONDEMNED UNHEARD. RULE 46A OF THE I.T. RULE IS ALSO FOUNDED - 3 - ITA NO.497/RJT/2012 HEENA MUKESH VARANAVA VS. ITO ASST.YEAR 2008-09 UPON SUCH PRINCIPLE OF NATURAL JUSTICE. THUS, HAVI NG REGARD OF THIS PARTICULAR ASPECT OF THE MATTER THE LD. CIT(A) OUGHT TO HAVE CONSIDERED SUCH EVIDENCE SUBMITTED BEFORE HIM BY THE ASSESSEE. SINCE THE SAME HAS NOT BEEN D ONE BY THE FIRST APPELLATE AUTHORITY WE FIND IT FIT AND PROPER TO GIVE ANOTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE ISSUE AFRESH IN ORDER TO PREVENT TH E MISCARRIAGE OF JUSTICE. HENCE, WE REMIT THE ISSUE TO THE FILE OF THE LD. CIT(A) TO DI SPOSE OF THE SAME UPON TAKING INTO CONSIDERATION THE EVIDENCES ON RECORD AND ALSO THE EVIDENCES WHICH THE ASSESSEE MAY CHOOSE TO RELY UPON AT THE TIME OF HEARING OF THE APPEAL AND TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 4. IN THE RESULT THE ASSESSEE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 18/12/2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MS. MADHUMITA R OY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/12/2019 TANMAY, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , ! /DR,ITAT, RAJKOT 6. '# $% / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , ! / ITAT, RAJKOT