Smt. Babli, Haridwar V. ITO, Haridwar

ITA 5064/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2742 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 28-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Assessee Lawyers: S K MONGA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.5064/DEL/2012 ASSESSMENT YEAR : 2008-09 BABLI, C/O S.K. MONGA & ASSOCIATES, 312-313, UPHAR, GOVINDPURI, HARIDWAR. PAN : AYMPD9433C VS. ITO, WARD-2, D 29-30, INDUSTRIAL AREA, HARIDWAR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. MONGA, ADVOCATE REVENUE BY : SHRI BHIM SINGH, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 AGAINST THE ORDER DATED 16.07.2012 PASSED BY T HE CIT (A)-II, DEHRADUN, TAKING THE FOLLOWING GROUNDS:- 1. THAT THERE IS NO JUSTIFICATION SUBSISTED ON THE PART O F THE LD. A.O. IN FRAMING THE ASSESSMENT U/S 144/148 OF THE IT ACT, 1961 ON A TOTAL INCOME OF RS.542000/- AND CREATING A D EMAND OF RS.180375/- ALONG WITH INTEREST INTER ALIA. 2. THAT THE AFFIDAVITS OF ASSESSEES BROTHER SH. JITENDER AND SISTER-IN-LAW (ANOTHER BROTHERS WIFE), ALONG WITH THE C OPY OF THE BANK A/C, KHASRA KHATAUNI, ETC., FILED BEFORE THE A.O. , WITHOUT CONSIDERING THE REAL FACTS AND WITHOUT CROSSING THE AFFI DAVITS THE ADDITION OF RS.542000/- AS HAS BEEN MADE BY THE A.O. AND CONFIRMED BY THE CIT (A) IS IMPROPER, AGAINST THE PROV ISIONS OF LAW AND UNJUSTIFIED. THE ASSESSEE HAD DISCHARGED HE R ONUS REGARDING THE IDENTITY AND CAPABILITY. 3. THAT NO NOTICE U/S 148 HAS BEEN SERVED UPON THE ASSESS EE LADY AND NO EVIDENCE HAS BEEN SHOWN OR PRODUCED DUR ING THE ITA NO.5064/DEL/2012 2 COURSE OF PROCEEDINGS REGARDING THE SERVICE, THE ASSE SSMENT AS HAS BEEN COMPLETED U/S 148 READ WITH SEC. 144 IS BAD IN LAW. THE OBJECTION AS RAISED FOR NON-SERVICE OF NOTICE BY THE ASSESSEE LADY IN THE BEGINNING HAS ALSO NOT BEEN BROUGHT IN THE BODY OF THE ASSESSMENT ORDER. 4. THAT THE INTEREST AS HAS BEEN CHARGED IN THE NOTICE OF DEMAND U/S 234A AND 234B AMOUNTING TO RS.32279/- AND RS.36743/- RESPECTIVELY IS WRONG AND AGAINST THE LAW BECAUSE IN THE ASSESSMENT ORDER NO ORDER HAS BEEN PASSED FOR CHA RGING OF INTEREST. THIS GROUND COULD NOT BE TAKEN SPECIFICALLY THROUGH OVERSIGHT BEFORE THE CIT (A)-II, DEHRADUN. HENCE, TH E INTEREST AS HAS BEEN CHARGED OUGHT TO BE DELETED. 5. THAT WITHOUT THE PREJUDICE TO GROUND NO.1 TO 4 ABOVE THE ASSESSMENT AS HAS BEEN COMPLETED AND DEMAND CREATED THEREON IS IMPROPER, ILLEGAL, UNJUSTIFIED AND AGAINST THE DOCTRINE OF NATURAL JUSTICE. 2. APROPOS GROUND NO.3, WHICH THE ASSESSEE HAS TAKEN UP F IRST, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT NO NOTICE U/S 148 OF THE IT ACT WAS EVER SERVED ON THE ASSESSEE; THAT THE ASS ESSMENT U/S 144 OF THE ACT IS BAD IN LAW; THAT THE ASSESSEE HAD RAIS ED A SPECIFIC OBJECTION REGARDING NON-SERVICE OF NOTICE, WHICH HAS NOT BEEN EVEN REFERRED TO IN THE ASSESSMENT ORDER, MUCH LESS DECIDED. 3. IN THIS REGARD, IT IS SEEN THAT A REPLY DATED 18.10 .2010 (COPY AT APB 9-10) HAD BEEN FILED BY THE LD. COUNSEL FOR THE ASSESSEE, ON BEHALF OF THE ASSESSEE, TO THE SHOW CAUSE NOTICE FOR PENALTY PRO CEEDINGS U/S 271 (1) (B) OF THE ACT, FOR THE YEAR UNDER CONSIDERA TION. THEREIN, AT PARA 4, THE ASSESSEE SPECIFICALLY CONTENDED AS FOLLOWS:- 4. THAT AS REGARDS YOUR HONOURS OBSERVATION REGARD ING THE NON-COMPLIANCE OF NOTICE U/S 142 (1) OF THE IT ACT, 19 61 IT IS EXPLAINED THAT THE HUSBAND OF THE LADY IS BEHIND THE BAR S W.E.F. 01.11.2009 AT ROSHNABAD, HARIDWAR AND WITH THE RESULT S HE IS MENTALLY PERTURBED AND BECAME THE PATIENT OF HYPER-TENSI ON. THERE IS NO ANY MOLLIFIED INTENSION IN NOT RESPONDING THE NOTICE BUT ON THE OTHER HAND THERE IS A LACK OF KNOWLEDGE AND ON ACCOUNT OF THE ABSENCE OF THE HUSBAND, SHE IS NOT GETTI NG ANY HELP FROM RELATIONS AND SOCIETY. ALTHOUGH HER HUSBAN D HAD BEEN CHEATED BADLY BY HIS A GOOD FRIEND OF THAT TIME. ITA NO.5064/DEL/2012 3 4. THUS, IT IS SEEN THAT THE ASSESSEE HAD SPECIFICALLY CONT ENDED, VIDE LETTER DATED 18.10.2010, INTER ALIA, THAT SHE COULD NOT COME PRESENT BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE NO TICE ISSUED U/S 142 (1) OF THE ACT, SINCE HER HUSBAND WAS BEHIND BA RS FROM 01.11.2009, RELEVANT TO THE PERIOD UNDER CONSIDERATI ON, DUE TO WHICH NOT BEING IN A GOOD STATE OF MIND, HAD BECOME A PATI ENT OF HYPERTENSION AND WAS NOT GETTING ANY HELP FROM ANY ON E. THE ASSESSMENT ORDER IS DATED 30.12.2010. A PERUSAL THEREOF SHOWS THAT INDEED, WHAT OF DECIDING THIS OBJECTION OF THE ASSESSEE, IT HAS NOT BEEN EVEN AS MUCH AS REFERRED TO THEREIN. IF THE CONTENTI ON OF THE ASSESSEE IS TO BE ACCEPTED, SHE WAS VISITED WITH A VALID CAUSE FO R NOT HAVING BEEN PRESENT BEFORE THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS. BY THE PASSING OF THE ASSESSMENT ORDER U/S 144/148 OF THE ACT, HENCE, THE ASSESSEE HAS BEEN CONDEMNED UNHEARD, WHICH IS NOT AT ALL ENVISAGED UNDER THE LAW. 5. THEREFORE, IN THE ABOVE FACTS AND CIRCUMSTANCES, WE DEEM IT APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AFRESH IN ACCORDANCE WITH THE LAW ON AFFO RDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE SHALL, NO DOUBT, COOPERATE WITH THE ASSESSING OFFICER IN THE FRESH ASSESSMENT PROCEEDINGS. ORDERED ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL O F THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 31.07.20 13. SD/- SD/- [G.D. AGRAWAL] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 31.07.2013. ITA NO.5064/DEL/2012 4 DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES