Mrs. Nandita Bakshi, New Delhi V. ITO, New Delhi

ITA 5192/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0436 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-01-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH SONKAR
• Assessee Lawyers: VIVEK SEHGAL TP
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH E NEW DELHI, BENCH E NEW DELHI, BENCH E NEW DELHI, BENCH E BEFORE SHRI C. L. SETHI, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUTANT MEMBER ITA NO. 5192 /DEL/2010 (ASSESSMENT YEAR 2006-07) MRS. NANDITA BAKSHI, VS. I.T.O., WARD 43(1), C-349, DEFENCE COLONY, NEW DELHI NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AGPPB4433M APPELLANT BY: SHRI VIVEK SEHGAL, TP RESPONDENT BY: SHRI PEEYUSH SONKAR, SR. DR ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2006-07 ARISES OUT OF THE ORDER OF LD. CIT(A) XXVIII, NEW D ELHI. 2. THE FIRST ISSUE FOR CONSIDERATION RELATES TO CON FIRMATION OF ADDITION WITHOUT PROVIDING SUFFICIENT OPPORTUNITY T O THE ASSESSEE. THE RELEVANT GROUNDS OF APPEAL ARE REPRODUCED AS UN DER: 1) THAT THE LD .CIT(A) HAS ERRED IN FACTS AND CIRC UMSTANCES OF THE CASE IN CONFIRMING ADDITIONS WITHOUT PROVIDI NG SUFFICIENT OPPORTUNITY TO THE APPELLANT. 2) THAT THE APPELLANTS COULD NOT APPEAR ON 22.07.20 10, THE DAY FIXED FOR HEARING BEFORE THE LD. CIT(A) AS HER COUNSEL, SH. LOKENDRA SHARMA WHO IS ALSO DIABETICS PATIENT FELL ILL ON 20.07.2010 ON ACCOUNT OF VIRAL FEVER WITH SEVERAL J OINT PAIN AND WAS ADVISED REST BY THE DOCTOR FOR ONE WEEK. COPIES OF MEDICAL REPORTS ARE ATTACHED. 3) THAT THE COUNSEL SH. LOKENDRA SHARMA WAS ILL THA T HE EVEN COULD NOT INFORM THE APPELLANT ABOUT FIXATION OF HT DATE AND THEREFORE, THE APPELLANT COULD NOT APPEAR ON 22 .07.2010 BEFORE THE LD. CIT(A) FOR HEARING OF APPEAL. THUS, IT WAS BEYOND THE CONTROL OF APPELLANT TO APPEAR BEFORE TH E APPELLATE AUTHORITY FOR HEARING OF APPEAL ON 22.07.2010. 4) THAT THE HEARING OF HT E APPEAL WAS FIRSTS FIXED ON 15.07.2010 WHEN THE COUNSEL SEEKS ADJOURNMENT FOR 2 ND WEEK OF AUGUSTS 2010 TO FILE WRITTEN SUBMISSIONS BUT THE ADJOURNMENT WAS GRANTED FOR 22.07.2010 AND THE ORDE R WAS PASSED ON 26.07.2010 WHICH ITSELF EXPLAIN THAT THE APPELLANT 2 WAS NOT GRANTED PROPER OPPORTUNITY TO FILE THE WRIT TEN SUBMISSIONS BEFORE THE LD .CIT(A). 3. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT T HE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) XXVIII NEW DELHI AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) OF THE ACT. L D. CIT(A) HAS PASSED EX-PARTE ORDER IGNORING THE REQUEST OF THE A SSESSEE TO ADJOURN THE CASE FOR HEARING. IN THE GROUNDS OF AP PEAL IT HAS BEEN SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR ON 22. 07.2010, THE DATE FIXED FOR HEARING BEFORE THE LD. CIT(A) AS HER COUNSEL SHRI LOKENDRA SHARMA FELL SICK ON 20.07.2010 ON ACCOUNT OF VIRAL FEVER WITH SEVERE JOINT PAIN AND WAS ADVISED REST BY THE DOCTOR FOR ONE WEEK. SHRI LOKENDRA SHARMA WAS ILL AND HE EVEN COUL D NOT INFORM ASSESSEE ABOUT THE FIXING OF DATE AND THEREFORE, TH E ASSESSEE COULD NOT APPEAR ON 22.07.2010 BEFORE THE LD. CIT(A) FOR HEARING OF APPEAL. THEREFORE, IT HAS BEEN CONTENDED THAT IT W AS BEYOND THE CONTROL OF THE ASSESSEE TO APPEAR BEFORE THE APPELL ATE AUTHORITY FOR HEARING ON 22.07.2010. ITS HAS ALSO BEEN STATE THA T THE HEARING OF APPEAL WAS 1ST FIXED ON 15.07.2010 AND THE COUNSEL OF THE ASSESSEE SOUGHT ADJOURNMENT FOR 2 ND WEEK OF AUGUSTS 2010 TO FILE WRITTEN SUBMISSION BUT THE ADJOURNMENT WAS GRANTED TO 22.07 .2010 AND THE ORDER WAS PASSED ON 26.07.2010. THEREFORE, THE ASS ESSEE WAS NOT GRANTED PROPER OPPORTUNITY TO FILE THE WRITTEN SUBM ISSION BEFORE THE LD. CIT(A). LD .CIT(A) HAD PROCEEDED TO DISPOSE OF THE APPEAL WITHOUT PROVIDING THE ASSESSEE A REASONABLE OPPORTU NITY OF BEING HEARD. 4. BEFORE US, THE LD. A.R. HAS FIELD THE MEDICAL RE PORT OF SHRI LOKENDRA SHARMA DATED 20.07.2010 WHEREIN HE WAS ADV ISED BED REST FOR ONE WEEK. DURING THE COURSE OF HEARING, L D. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE UNDERTAKES TO APPEAR BEFORE LD. CIT(A) XXVIII NEW DELHI WITHIN 30 DAYS ON RECEI PT OF ORDER OF ITAT AND WILL FILE RELEVANT DOCUMENTS CONNECTED WIT H THE APPEAL. THE COUNSEL FOR THE ASSESSEE HAS ALSO UNDERTAKEN TH AT THE ASSESSEE WOULD APPEAR ON ITS OWN WITHOUT WAITING FOR NOTICE FROM LD. CIT(A) AND WILL NOT SEEK ADJOURNMENTS. THE RELEVANT DOCUM ENTS WILL BE FILED ON THE VERY FIRST DAY OF HEARING BEFORE LD. C IT(A). 3 5. WE HAVE CONSIDERED THE REQUEST MADE BY THE ASSES SEE AND HAVE ALSO HEARD LD. SR. DR. FROM THE FACTS STATED ABOVE AND THE MEDICAL REPORT FROM FARAZ HEALTH CARE, IT IS EVIDEN T THAT THE COUNSEL FOR THE ASSESSEE SHRI LOKENDRA SHARMA FELL SICK ON 20.07.2010 AND WAS ADVISED 1 WEEK REST. IN VIEW OF THESE FACTS, W E ARE INCLINED TO AGREE WITH THE REQUEST OF THE ASSESSEE TO SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE AFTER CONSIDERING THE RELEVANT REPLY AND MATERIAL TO BE F ILED BY THE ASSESSEE AS UNDERTAKEN BY HIM. WE, THEREFORE, SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUE AFRES H AFTER AFFORDING THE ASSESSEE, A REASONABLE OPPORTUNITY OF BEING HEARD. SINCE THE ASSESSEE HAS UNDERTAKEN NOT TO WAIT FOR THE NOTICE TO BE ISSUED BY THE LD. CIT(A) WE DIRECTS THE COUNSEL FOR THE ASSES SEE TO APPEAR BEFORE THE LD. CIT(A) WITHIN ONE MONTH FROM THE DAT E OF RECEIPT OF THIS ORDER ON ITS OWN. THE ASSESSEE HAD ALSO GIVEN UNDERTAKING THAT ASSESSEE WILL NOT TAKE ADJOURNMENT AND COOPERATE WI TH THE LD. CIT(A) IN GETTING THE APPEAL DECIDED. LD. CIT(A) I S DIRECTED TO TAKE UP THE APPEAL THE DAY ON WHICH THE ASSESSEE APPEARS WITHIN THE PERIOD OF ONE MONTH FORM THE DATE OF SERVICE OF THI S ORDER. WE ORDER ACCORDINGLY. 6. IN THE RESULTS, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. PRONOUNCED IN THE OPEN COURT ON 18 TH FEB., 2011. SD./- SD./- (C. L. SETHI) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:18 TH FEB., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI