Sarika, New Delhi V. ITO, New Delhi

ITA 5382/DEL/2010

• Counselvise Citation: 538220114 RSA 2010
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: V MOHAN C AS; MRS RANO JAIN
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 5382/DEL/2010 ASSESSMENT YEAR: 2006-07 SARIKA, VS. INCOME-TAX OFFICER, 3 RD FLOOR, BUNGLOW PLOT NO.1, WARD 36(3), PANDAV NAGAR, DELHI-1100 92 NEW DELHI. (PAN: ABXPS 0950P) (APPELLANT) (RESPONDENT) APPELLANT BY: MRS. RANO JAIN & SHRI V. MOHAN, CAS RESPONDENT BY: SMT. S. MOHANTY, DR DATE OF HEARING : 25.11.2011 DATE OF PRONOUNCEMENT : 30.11.2011 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 01.12.2009 PASSED FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEALS TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF THE ITAT'S RULES, THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. IN BRIEF, HER GRIEVANCE IS THAT LEARNED CIT(APPEALS) H AS ERRED IN CONFIRMING THE ADDITION OF RS.8,90,695 WHICH WAS MADE BY THE A SSESSING OFFICER BY PASSING AN EX PARTE ASSESSMENT ORDER UNDER SECTION 144 OF THE INCOME-TAX ACT, 1961. 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HER RETURN OF INCOME ON 30.03.2007 DECLARING AN INCOME OF RS.1,33 ,100. THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SEC. 143(2) DATED 5.11.2007 WAS ISSUED TO THE ASSESSEE. ASSESSI NG OFFICER HAS PASSED THE ASSESSMENT ORDER ON 26.12.2008 DETERMINING THE INCO ME OF THE ASSESSEE AT RS.11,17,951. THIS ASSESSMENT ORDER HAS BEEN PASSED EX PARTE UNDER SECTION 144 OF THE ACT. 3. DISSATISFIED WITH THE ACTION OF THE ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS ). SHE FILED AN APPLICATION FOR PERMISSION TO ADDUCE ADDITIONAL EVI DENCE UNDER RULE 46A OF THE INCOME-TAX RULES, 1962 BUT HER APPLICATION HAS BEEN REJECTED BY THE LEARNED FIRST APPELLATE AUTHORITY ON THE GROUND THA T SHE FAILED TO DEMONSTRATE REASONS WHICH PREVENTED HER FROM FURNIS HING THESE EVIDENCE BEFORE THE ASSESSING OFFICER. ON MERIT, LEARNED FIR ST APPELLATE AUTHORITY IN PRINCIPLE CONFIRMED THE ASSESSMENT ORDER ON THE GRO UND THAT ASSESSEE FAILED TO PROVIDE EVEN BASIC DETAILS BEFORE THE ASSESSING OFFICER, THEREFORE, ASSESSING OFFICER HAS RIGHTLY ESTIMATED THE INCOME OF THE ASSESSEE. HOWEVER, THE APPEAL HAS BEEN ALLOWED PARTLY. 4. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE CONTENDING THEREIN THAT N OTICES ISSUED BY THE 3 ASSESSING OFFICER WERE NEVER RECEIVED BY HER. SHE C AME TO KNOW ABOUT THE ASSESSMENT ORDER IN A PENALTY PROCEEDINGS, THEREAFT ER, SHE APPLIED FOR THE COPY OF AN ORDER AND FILED THE APPEAL. WE HAVE GONE THROUGH THIS AFFIDAVIT AS WELL AS ASSESSMENT ORDER. IN THE ASSESSMENT ORDER, ASSESSING OFFICER HAS MERELY MENTIONED THAT NOTICE DATED 5.11.2007 WAS IS SUED UNDER SEC. 143(2) OF THE ACT FIXING THE CASE FOR 14.1.2008. HE HAS NO T MENTIONED WHETHER THIS NOTICE WAS SERVED UPON THE ASSESSEE OR NOT. HE REFE RRED THAT ON THIS DATE, NOBODY ATTENDED NOR ANY REQUEST FOR ADJOURNMENT WAS RECEIVED. SIMILAR IS THE FATE OF OTHER NOTICES. THERE IS NO CATEGORICAL FINDING THAT NOTICES ISSUED BY THE ASSESSING OFFICER WERE SERVED UPON TO THE AS SESSEE. IN SUCH SITUATION, WE ARE OF THE OPINION THAT LEARNED FIRST APPELLATE AUTHORITY OUGHT TO HAVE PERMITTED THE ASSESSEE TO LEAD ADDITIONAL EVIDENCE SO THAT THE ISSUES COULD BE ADJUDICATED ON MERIT. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES, WE DEEM IT APPROPRIATE TO SET ASIDE BOTH THE ORDERS AND RESTORE ALL THESE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR REA DJUDICATION BECAUSE THE ASSESSMENT ORDER IS AN EX PARTE ORDER AND INVESTIGA TION HAS TO BE CONDUCTED AT THE LEVEL OF THE ASSESSING OFFICER. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. SD/- SD/- ( K.G. BANSAL ) ( RA JPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/11/2011 MOHAN LAL 4 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR