Sangeeta Duggal, New Delhi V. ITO, Ward- 50(3), New Delhi

ITA 6761/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5465 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: N K GULATI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6761/DEL/2017 ASSESSMENT YEAR: 2010-11 SANGEETA DUGGAL, VS. ITO, WARD 50(3), 13A/20, WEA KAROL BAGH, NEW DELHI NEW DELHI 110 005 (PAN: AAOPD7757K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. N.K. GULATI, ADV. REVENUE BY : MS. ASHIMA NEB, SR. DR ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 23.8.2017 OF THE LD. CIT(A)-17, NEW DELHI PERTAIN ING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT NO REASONABLE OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO PRESENT HIS CASE AND WITHOUT GIVING ANY FINAL NOTICE, BEST JUDGMENT ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER. IT IS SUBMITTED THAT WE WERE ISSUED WITH THE NOTICE DATED 19-03- 2014 AND RESPONSE TO THE NOTICE COUNSEL OF THE ASSESSEE APPEARED 2 BEFORE THE ASSESSING OFFICE WHERE HE WAS ASKED TO FURNISH SOME DETAILS ON 23-05-2014. AND THE CASE WAS ADJOURNED TO 06-06-2014. IT IS SUBMITTED THAT IN MONTH OF JUNE PROFESSIONAL BODY OF OUR COUNSEL OBSERVE HOLIDAYS, WHEREBY THEY WERE GIVEN LIBERTY TO NOT TO APPEAR BEFORE THE AUTHORITY BY THE DEPARTMENT AND THEY ARE GIVEN ASSURANCE THAT NO EX-PARTE ORDER WILL BE PASSED AGAINST THEM THAT'S WHY DUE TO BEING ON HOLIDAY COUNSEL OF THE ASSESS DIDN'T BOTHERED TO APPEAR. AFTER THAT ACCORDING TO THE ASSESSMENT ORDER A LETTER DATED 04-08-2014 WAS ISSUED WHERE 11-08-2014 WAS FIXED FOR HEARING. IT IS TO BE SUBMITTED WE NEVER RECEIVED THE LETTER, SO THERE WAS NO QUESTION OF APPEARANCE ON THAT DAY. HOWEVER AFTER TWO DAYS OUR COUNSEL VISITED THE ASSESSING OFFICER WHERE HE CAME TO KNOW ABOUT THE NOTICE. ON REQUEST OF THE COUNSEL THE MATTER WAS 'FURTHER ADJOURNED. ACCORDING TO THE ASSESSING OFFICER ANOTHER NOTICE WAS ISSUED U/S 142(1) FOR 07- 01-2015 WHICH WAS ALSO NEVER RECEIVED BY THE 3 ASSESSEE. AGAIN OTHER NOTICES WERE ISSUED ON 16-01-2015 FOR HEARING ON 23-01-2015 AND ON 22-01-2015 FOR 04-02-2015 (IT WAS ALL ACCORDING TO THE ASSESSING OFFICER. IT IS IMPORTANT TO NOTICE THAT AS PER ORDER IN FIRST INSTANCE MATTER WAS FIXED FOR 23-01-2015 AND BEFORE THAT DATE I.E. 23-01-2015 ASSESSING OFFICER HAS ISSUED ANOTHER NOTICE DATED 22-01- 2015 THAT MEANS THERE WAS NO APPLICATION OF PART OF THE ASSESSING OFFICER. IN WHATEVER HAS BE SAID ABOVE ONE THING COMES OUT TO BE CRYSTAL CLEAR THAT ASSESSEE DIDN'T RECEIVED ALL THE NOTICES AND ASSESSING OFFICER ARBITRARILY PROCEEDED WITH SECTION 144 WITHOUT EVEN ISSUING FINAL NOTICE WHICH IS A CLEAR CASE OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS ASSESSING OFFICER PROCEEDED WITHOUT GIVING US ANY OPPORTUNITY TO PRESENT THE CASES? 2. THAT ORDER U/S 144 HAS BEEN PASSED BY THE ASSESSING AUTHORITY WITHOUT GIVING FINAL OPPORTUNITY TO THE ASSESSEE AS NO NOTICE EXCEPT THE FIRST NOTICE WAS EVER SERVED TO US. 4 3. NOW AS FARE THE QUESTION ON MERITS GOES WE HAVE EVERY STRONG CASE IN OUR FAVOUR AS WE HAVE ALREADY FILLED OUR RETURN FOR THE YEAR IN QUESTION ON 04-03-2011 VIDE ACKNOWLEDGEMENT NO 3321003767. VERBALLY WE HAVE ALSO TOLD TO THE ASSESSING OFFICER THAT WE WILL TAKE STAND THAT SAME RETURN SHALL BE TREATED AS RETURN FILLED IN RESPONSE TO NOTICE U/S 148. BUT SOMEHOW WE NEVER RECEIVED THE LATER NOTICES AND ASSESSING OFFICER DECIDED THE ASSESSMENT U/S 144. IN THE SAID RETURN WE HAVE SHOWN INCOME U/S. 44AE AND 44AF RESPECTIVELY AS WE WERE HAVING 4 LORRIES DURING THE SAID YEAR AND WE HAVE SHOWN IN ITR INCOME FROM THESE LORRIES @5000 / -PER MONTH (UNDER SECTION 44AE) AND DURING THE SAID YEAR WE MADE SALE OF LADIES SUITS AMOUNTING TO RS. 102000/ - ON WHICH WE HAVE SHOWN PROFIT U/S 44AF @5% SO THE MAXIMUM AMOUNT ALLOWED BY THE ACT HAS BEEN SHOWN AND WE WERE NOWHERE AT FAULT. 4. THAT LEARNED COMMISSIONER(APPEALS) ERRED IN LAW IN SUSTAINING THE ADDITION U/S. 68 ON UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. 5 5. THAT APPELLANT PRAYS FOR ALL CONSEQUENTIAL RELIEFS ENTITLED TO IT UNDER THE LAW IN PURSUANCE OF THE FOREGOING GROUNDS OF APPEAL ORE EVEN OTHERWISE. 6. THAT APPELLANT CRAVES LEAVE TO ADD, DELETE, MODIFY OR VARY ANY OF THE GROUNDS OF APPEAL AT ANY TIME DURING THE PENDENCY OF THE APPEAL OR AT THE TIME OF HEARING. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AFTER HEARING BOTH THE PARTIES, I AM OF THE VIEW THAT THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO AS WELL AS LD. CIT(A). BUT DURING THE HEARING, SH. NK GULATI, ADV./COUNSEL OF THE ASSESSEE STATED THAT HE APPEARED BEFORE THE AO AS WELL AS LD. CIT(A) MANY TIMES, BUT DID NOT APPEAR SOME TIME DUE TO THE REASONS THAT HE HAD GONE THROUGH BY-PASS SUR GERY AND DUE TO THE DEATH OF HIS MOTHER. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. HE FURTHER UNDERTAKES THAT HE WILL APPEAR BEFORE THE LD. CIT(A) AND WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT AND WILL COOPERATE IN THE APPELLATE PR OCEEDINGS 6 FOR THE SPEEDY DISPOSAL OF THIS APPEAL, IF THIS BEN CH SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) . 3.1 ON THE CONTRARY, LD. DR STRONGLY OBJECTED THE REQUEST OF THE ASSESSEES COUNSEL AND STATED THAT ASSESSEE RE MAINED NON- COOPERATIVE BEFORE THE REVENUE AUTHORITIES AND THER EFORE, IS NOT ENTITLED FOR ANY LENIENCY. HENCE, SHE REQUESTED THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ORDER OF THE LD. CIT(A). THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE AO AS WELL AS LD. CIT(A). BUT I FIND COGENCY AND PLAUSIBLE REASON S IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT HE APPEARED BEFORE THE AO AS WELL AS LD. CIT(A) MANY TIMES, BU T DID NOT APPEAR SOME TIME DUE TO THE REASONS THAT HE HAD GON E THROUGH BY-PASS SURGERY AND DUE TO THE DEATH OF HIS MOTHER. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE. THE ASSESSEE THROUGH HIS COUNSEL SH. N.K. GULATI, ADV. IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 17.07.2018 AT 10.00 AM AND WILL REMAIN COOPERATIVE IN THE PROCEEDINGS A ND NOT TO TAKE 7 UNNECESSARY ADJOURNMENT. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 02-05-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 02-05-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. 8