Sh. Ranvir Singh, Zirakpur V. ITO, Jind

ITA 532/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7000 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJIV SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 532/CHD/2017 ASSESSMENT YEAR: 2009-10 SHRI RANVIR SINGH, VS. THE ITO, S/O SHRI RAM SINGH, WARD 1, H.NO. 912, IMPERIAL ESTATE, JIND. PEER MUCHHALLA, ZIRAKPUR. PAN NO. ASQPS9423B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT KAURA & SHRI R AJIV SHARMA RESPONDENT BY : SMT. CHANDER KANTA, SR.DR DATE OF HEARING : 29.06.2017 DATE OF PRONOUNCEMENT : 11.08.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 28.10.2016 OF CIT (APPEALS) ROHTAK PERT AINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NOS. 1 AND 2, WHIC H READ AS UNDER : 1. THAT THE ORDER OF LD. CIT(A) IS AGAINST THE LAW AND FACTS OF THE CASE THUS VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 2 THAT THE LD. CIT (A) IS NOT JUSTIFIED IN DISMISSI NG THE APPEAL IN LIMINE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. HOWEVER, BEFORE WE PROCEED TO ADDRESS THE GROUND S, IT IS PERTINENT TO NOTE THAT THE REGISTRY HAS POINTED OUT A DELAY OF 74 DAYS. ACCOR DINGLY, THE APPEAL IS BARRED BY LIMITATION. THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE RELYING UPON THE CONDONATION OF DELAY APPLICATION SUPPORTED BY AN AFFIDAVIT OF T HE ASSESSEE, SUBMITTED THAT AT THE TIME OF FILING OF THE APPEAL, THE ADDRESS OF THE ASSESSE E WAS HOUSE NO. 3172, UE, JIND, HOWEVER DURING THE PENDENCY OF THE APPEAL, THE ASSESSEE'S A DDRESS CHANGED, AND ON ACCOUNT OF THE MISTAKE AND IGNORANCE, THE ASSESSEE DID NOT KEEP TH E CIT(A) INFORMED AND WAS NOT AWARE OF THE ORDER HAVING BEEN PASSED. INVITING ATTENTION TO PB-2 PAGE 9 SUBMITTED THAT THE ASSESSEE WHO WAS A TICKET VERIFIER, WAS TRANSFERRED FROM JIND AGAINST THE VACANT POST OF CLERK IN CHANDIGARH BY AN ORDER OF THE GENERAL MANA GER, HARYANA ROADWAYS, CHANDIGARH. ON ACCOUNT OF THIS FACT, AS THE NOTICES WERE SENT T O THE ORIGINAL ADDRESS GIVEN IN FORM NO. 35, THE ASSESSEE REMAINED UNREPRESENTED. IN THE CI RCUMSTANCES, IT WAS HIS PRAYER THAT THE DELAY MAY BE CONDONED AND THE IMPUGNED ORDER MAY BE SET ASIDE WITH THE DIRECTION THAT THE ORDER BE PASSED AFTER HEARING THE ASSESSEE. ITA 532/CHD/2017 A.Y. 2009-10 PAGE 2 OF 2 3. THE LD. SR.DR CONSIDERING THE SUBMISSIONS, CONDO NATION OF DELAY APPLICATION ALONGWITH THE AFFIDAVIT AND THE ARGUMENTS OF THE L D. AR HAD NO OBJECTION IF THE DELAY IS CONDONED AND THE MATTER IS SET ASIDE BACK TO THE FI LE OF THE CIT(A). 4. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES B EFORE THE BENCH AND CONSIDERING THE CONTENTS OF THE CONDONATION OF DELAY APPLICATION, S UPPORTED BY AN AFFIDAVIT, I FIND THAT THE ASSESSEE REMAINED UNREPRESENTED FOR REASONS BEY OND HIS CONTROL. THE CLAIM OF BONAFIDE IGNORANCE IN KEEPING THE FIRST APPELLATE AUTHORITY INFORMED ABOUT THE CHANGE OF ADDRESS IS ACCEPTED. THE DELAY IS CONDONED. 5. ON MERIT, IT IS SEEN THAT THE LD. CIT(A) HAS PAS SED AN EX-PARTE ORDER DISMISSING THE ASSESSEE'S APPEAL IN LIMINE. THE SAID ORDER CANNOT BE SAID TO HAVE BEEN PASSED IN TERMS OF THE STATUTORY PROVISIONS WHICH GUIDE THE FIRST APPE LLATE AUTHORITY IN THE EXERCISE OF HIS POWERS WHICH ARE SET OUT UNDER SUB-SECTION (6) OF S ECTION 250 OF THE INCOME TAX ACT, 1961. THE STATUTE REQUIRES THE COMMISSIONER OF APP EALS TO EXERCISE ITS APPELLATE AUTHORITY BY NOT ONLY FOLLOWING THE MANDATE OF SUB- SECTION (1) TO (5) OF SECTION 250 OF THE ACT BUT ALSO STIPULATES THAT THE COMMISSIONER (APPEALS)] DISPOSING OF THE APPEA L SHALL PASS AN ORDER IN WRITING AND SHALL STATE THE POINT S FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION . THE SAID EXERCISE, IT IS SEEN, IS FOUND TO BE M ISSING. ACCORDINGLY, IN ORDER TO ADDRESS THE STATUTORY DEFI CIT, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE LD. CIT(A) WITH DIRECTION TO PAS S A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. AT THE SAME TIME, IT IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED, IT IS HOPED, IS NOT ABUSED BY THE ASSESSEE AS IN THE EVENTUALITY OF ABUSE OF THE SAME, THE LD. CIT(A ) WOULD BE AT LIBERTY PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THUS, IT IS HOPED THAT THE ASSESSEE IN ITS OWN INTEREST MAKES FULL AND PROPER COMPLIANCE BEFOR E THE SAID AUTHORITY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUG. 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.