REBECCA JOY VERGHESE, AMBERNATH V. ITO (HQ) (CIB) PUNE, KALYAN

ITA 5221/MUM/2011

• Counselvise Citation: 522119914 RSA 2011
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATBER SINGH
• Keywords: Unexplained expenditure; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.5221/MUM/2011 (ASSESSMENT YEAR: 2005-06) MRS. REBECCA JOY VERGHESE, 150, KANSAI SECTION, AMBERNATH -421 501 ...... APPELLANT VS ITO (HQ)(CIB), PUNE, WARD 2(3), MUMBAI -400 020 ..... RESPONDENT PAN: AEYPJ 0351 B APPELLANT BY: NONE RESPONDENT-REVENUE BY: SHRI SATBER SINGH DATE OF HEARING: 17.04.2012 DATE OF PRONOUNCEMENT: 25.04.2012 O R D E R R.S. PADVEKAR, JM : THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING TH E IMPUGNED ORDER OF THE LD. CIT (A)-2, THANE DATED 28.03.2011 FOR THE A.Y. 2005- 06. THE ASSESSEE HAS RAISED THE SERIOUS GRIEVANCE AGAINST THE ACTION OF THE LD. CIT (A) FOR DISMISSING HER APPEAL EX-PARTE WITHOUT ADJUDICATING THE GROUNDS IN THE APPEAL MEMO ON THIS ISSUE. GROUND NO.1 & 2 READS READ AS UNDER: 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLANT BY PRESUMING THAT THERE IS NO RESPONSE FROM THE APPELL ANT AND THAT THE APPELLANT HAS NOT ATTENDED THE HEARINGS ON THE APPOINTED DATES WITHOUT CONSIDERING THE FACT THAT T HE SAID NOTICES WERE EITHER SERVED ON THE ASSESSEE AFTER TH E DATE OF HEARING OR WERE NOT SERVED ON THE APPELLANT. ITA NO.5221/MUM/2011 MRS. REBECCA JOY VERGHESE, 2 2) WITHOUT HAVING PREJUDICE TO THE ABOVE MENTIONED GROUND NO.1, THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAS NOT ADJUDICATED THE GROUNDS OF APPEAL RAISED BY THE APPELLANT IN THE APPEAL FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, THANE, MOR E SO, WHERE THE SUBMISSIONS WERE MADE IN THE STATEMENT OF FACTS ITSELF ATTACHED TO THE GROUNDS OF APPEAL, WHICH MOR E OR LESS WERE OF ENABLING NATURE IN ADJUDICATING THE APPEAL FILED BY THE APPELLANT. 2. THE ASSESSEE HAD FILED AN APPLICATION FOR ADJOUR NMENT. IT IS SEEN THAT ON THE EARLIER OCCASIONS ALSO THE ASSESSE ES COUNSEL HAS SOUGHT ADJOURNMENTS ON THE DIFFERENT REASONS. I AM , THEREFORE, OF THE OPINION THAT THE ASSESSEE IS NOT INTERESTED IN PROS ECUTING THIS APPEAL. I, ACCORDINGLY, DISPOSE OFF THIS APPEAL ON THE BASI S OF THE MATERIAL AVAILABLE ON RECORD. I HAVE ALSO HEARD THE LD. DR. 3. IN THIS CASE THE ASSESSMENT ORDER IS PASSED U/S. 144 OF THE INCOME-TAX ACT BY THE ITO (HQ)(CIB)(PUNE) DETERMINI NG THE TOTAL INCOME OF THE ASSESSEE AT ` 3,79,028/-. THE A.O. HAS OBSERVED THAT FROM THE TRANSACTION REPORTED IN ANNUAL INFORMATION REPORT (AIR) THE ASSESSEE HAD MADE PAYMENTS AGGREGATING TO ` 3,79,028/- THROUGH CREDIT CARD DURING THE FINANCIAL YEAR 2004-05. THE A.O. ISSUED NOTICE U/S.142(1) OF THE ACT CALLING FOR THE RETURN OF INC OME FOR THE A.Y. 2005-06. THE A.O. HAS OBSERVED THAT THE ASSESSEE W AS ISSUED ANOTHER NOTICE BY THE A.O. U/S.142(1) CALLING FOR CERTAIN D ETAILS. THERE WAS NO RESPONSE FROM THE ASSESSEE THOUGH BOTH THE NOTICES WERE SERVED. THE A.O., THEREFORE, PASSED BEST JUDGMENT ASSESSMENT TR EATING THE ENTIRE AMOUNT OF ` 3,79,028/- AS UNEXPLAINED EXPENDITURE. THE ASSE SSEE CHALLENGED ASSESSMENT ORDER BEFORE THE LD. CIT (A) CHALLENGING THE JURISDICTION OF THE ITO (HQ)(CIB)(PUNE) WHO PASSED THE SAID ASSESSMENT ORDER IN HER CASE. AS PER THE STATEMENT OF FACTS BEFORE THE LD. CIT (A) THE ASSESSEE STATED THAT SHE IS PLACED IN AMBERNATH AND ALSO IS REGULARLY ASSESSED TO TAX BY THE ITO WARD 2 (4), KALYAN. THE ITA NO.5221/MUM/2011 MRS. REBECCA JOY VERGHESE, 3 ASSESSEE ALSO FILED A COPY OF ACKNOWLEDGMENT OF THE RETURN FILED FOR THE A.Y. 2005-06 VIDE RECEIPT NO.20641. 4. THE ASSESSEE CHALLENGED THE JURISDICTION OF THE ITO (HQ)(CIB)(PUNE) TO PASS THE SAID ASSESSMENT ORDER AS WELL AS LEGALI TY OF THE SAID ORDER ON THE ISSUE OF NON-SERVICE OF NOTICE U/S.143(2). THE LD. CIT (A) DISPOSED OFF THE ASSESSEES APPEAL EX-PARTE DISMISSING THE SAME ON THE REASON THAT IN RESPECT OF THE ISSUING DIFFERENT NOT ICES THE ASSESSEE DID NOT ATTEND THE HEARING, HENCE, THE ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APPEAL. 5. I FIND THAT THOUGH THE LD. CIT (A) HAS GIVEN TH E DETAILS OF THE NOTICES ISSUED TO THE ASSESSEE BUT NOWHERE IT IS ME NTIONED THAT WHETHER ANY OF THE SAID NOTICES WAS SERVED ON THE A SSESSEE. MOREOVER, THE LD. CIT (A) DISMISSED THE APPEAL WITH OUT ADJUDICATING THE GROUNDS TAKEN BEFORE HIM ON MERIT. IN MY OPINI ON WHEN THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE ITO (HQ)(CIB)(PUNE) AS WELL AS THE LEGALITY OF THE ASSESSMENT ORDER THE LD . CIT (A) SHOULD HAVE DECIDED THE SAME ON MERIT. I, THEREFORE, RESTORE T HIS MATTER TO THE FILE OF THE LD. CIT (A) TO DISPOSE OFF THE ASSESSEES AP PEAL BY ADJUDICATING THE SAME ON MERIT. NEEDLESS TO SAY THE ASSESSEE SH OULD BE GIVEN OPPORTUNITY OF BEING HEARD BY PROPER SERVICE OF THE NOTICE. THE LD. CIT (A) IS ALSO DIRECTED TO CONSIDER INSTRUCTION NO .6 OF 2006 DATED 01.08.2006 ISSUED BY THE MINISTRY OF FINANCE, DEPAR TMENT OF REVENUE, CBDT, NEW DELHI F.NO.414/76/2005-IT(INV.I) . 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 5TH APRIL 2012. SD/- ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 25TH APRIL 2012 ITA NO.5221/MUM/2011 MRS. REBECCA JOY VERGHESE, 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-II, THANE. 4) THE CIT III, THANE. 5) THE D.R. SMC BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN