Kavita, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 5483/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3124 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 24-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Assessee Lawyers: K L ANEJA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 5483 /DEL/2016 : ASSTT. YEAR : 2009 - 10 KAVITA, W/O - VIRENDRA SINGH, 235, AVA S VIKAS COLONY, MUZAFFARNAGAR VS INCOME TAX OFFICER, WARD - 1(3 ), MUZAFFARNAGAR (APPELLANT) (RESPONDENT) PAN NO. BAMPK7339B ASSESSEE BY : SH. K. L. ANEJA, ADV. REVENUE BY : SH. AMRIT LAL, SR. DR DATE OF HEARING : 15 .0 5 .201 7 DATE O F PRONOUNCEMENT : 17 .05 .201 7 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.08 .2016 OF LD. CIT(A), MUZAFFARNAGAR . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1.1 THAT THE LD. AO HAS ERRED IN LAW AND ON FACTS IN MAKING ASSESSMENT U/S 144 /148, WITHOUT EFFECTING PROPER SERVICE OF NOTICE U/S 148 OR 142 (1) AS STATED IN EX - PARTE ORDER PASSED BY THE A.O. 1.2 THAT THE LD. CIT (APPEAL) HAS ERRED IN CONFIRMING AO'S ORDER U/S 144/148 OF THE ACT. 2.1 THAT TH E AO HAS ERRED IN MAKING AN ADDITION OF RS.847165/ - ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT U/S 69A OF THE ACT. 2.2 THAT THE LD. CIT(A) ERRED IN LAW ON FACTS IN CONFIRMING THE ADDITION OF RS. 847165/ - MADE BY THE A.O. ITA NO . 5483 /DEL /201 6 KAVITA 2 IGNORING THE AGRL. BACK GROUND OF THE APPELLANT AND FAMILY MEMBERS EARNING AGRICULTURE INCOME AND ENJOYING SALE PROCEEDS OF POPULAR TREE S GROWN OVER THE LANDS. 3. THAT THE LD. CIT(A) WAS WRONGLY INFLUENCED OF THE ADVERSE OBSERVATIONS CONTAINED IN AO'S EX - PARTE ORDER PASSED WITHO UT EFFECTING PROPER SERVICES OF THE VARIOUS NOTICES ISSUES AND NOT PROPERLY SERVED UPON THE APPELLANT, RESULTING IN ADDITION OF RS.847165/ - TOWARDS APPELLANT'S INCOME WHICH IS A GREAT HIT, UNJUST AND DESERVE TO BE KNOCKED OUT. 4. THAT THE APPELLANT RESER VES ITS RIGHTS TO ADD, AMEND OR MODIFY ANY GROUND OF APPEAL BEFORE FINAL ADJUDICATION. 3 . VIDE GROUND NO. 3, THE ASSESSEE IS AGGRIEVED AGAINST THE ACTION OF THE AO IN PASSING THE ASSESSMENT ORDER EX - PARTE AND VIDE GROUND NO. 1.2, THE ASSESSEE IS AGGRIEVE D A GAINST THE ACTION OF THE LD. CIT (A) IN CONFIRMING THE ORDER PASSED BY THE AO EX - PARTE. 4 . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX - PARTE WITHOUT AFFORDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE AND THE AO ALSO DID NOT AFFORD PROPER OPPORTUNITY OF BEING HEARD WHILE FRAMING THE ASSESSMENT EX - PARTE . HE REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE AO FOR ADJUDICATION AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 5 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE AND NEVER APPEARED EITHER BEFORE THE AO OR THE LD. ITA NO . 5483 /DEL /201 6 KAVITA 3 CIT(A). THEREFORE, THERE WAS NO OPTION EXCEPT TO PASS THE ASSESSMENT OR THE IMPUGNED ORDER EX - PA RTE. 6 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE AO PASSED THE ASSESSMENT ORDER EX - PARTE U/S 144 OF THE INCOME TAX ACT, 1961 AND THE LD. C IT(A) ALSO PASSED THE IMPUGNED ORDER EX - PARTE. HE SIMPLY STATED THAT THE NOTICES OF HEARING WERE ISSUED ON 15.06.2016 AND 12.08.2 016 AND THERE WAS NO COMPLIANCE , HOWEVER, HE NOWHERE STATED THAT THE NOTICES OF HEARING WERE SERVED UPON THE ASSESSEE. I , THERE FORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (O RDER PRONOUNCED IN THE COURT ON 17 /05 /2017 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 17 /05 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR