Sarvjeet Singh Lamba, Lucknow V. Income Tax Officer, Lucknow

ITA 716/LKW/2013

• Counselvise Citation: 71623714 RSA 2013
• Duration Of Justice: 1 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO. 716/LKW/2013 ASSESSMENT YEAR: 2008 - 09 SHRI. SARVJEET SINGH LAMBA 508/66, HATA BABA DAYAL SINGH RAI BEHARI LAL ROAD NEW HYDERABAD, LUCKNOW V. INCOME TAX OFFICER RANGE II(3) LUCKNOW T AN /PAN : AAXPL7615H (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY: SHRI. PUNIT KUMAR, D.R. DATE OF HEARING: 17 03 201 5 DATE OF PRONOUNCEMENT: 26 0 3 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE ASSESSMENT ORDER WHICH IS CONTRARY T O LAW, FACTS AND CIRCUMSTANCES OF THE CASE WITHOUT GOING INTO TH E MERITS OF THE CASE. 2. THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THA T THE APPELLANT IS A 'KACHHA ARTIA' AND AS A MATTER OF FA CT THE BUSINESS WAS ON VERY PETTY SCALE READ WITH THE SITU ATION THAT THE APPELLANT COULD HARDLY MAKE HIS BOTH ENDS MEET AND HAD TO RESORT TO TAKE LOAN FROM BANK AND THERETO BECAME A DEFAULTER. 3. THAT THE APPELLANT WAS PREVENTED FROM A REASONABLE AND SUFFICIENT CAUSE FROM MAKING AN APPEARANCE DUE TO N ON SERVICE OF NOTICES, WRONG ADVICE AND BEING BED RIDDEN ON AC COUNT OF :-2-: MENTAL DEPRESSION AND AILMENT. 4. THAT QUITE OFTEN NOTICES OF HEARINGS ISSUED BY AO/C IT(A) SINCE INCOMPLETE AND SHORT USE OF 'RBL ROAD' THE NOTICES WERE RE- DIRECTED TO RAE BARELI ROAD INSTEAD OF RAI BEHARI L AL ROAD RESULTING IN NON-COMPLIANCE. 5. THAT THE LEARNED CIT(A) WRONGLY CONFIRMED THAT ASSE SSMENT ORDER PASSED U/S 143(3) AND OUGHT TO HAVE BEEN PASS ED U/S 144 BEING AN EX-PARTE ORDER AND THUS BOTH THE ASSES SMENT / APPELLATE ORDER ARE ILLEGAL, ARBITRARY AND ILLOGICA L AND THUS CANNOT BE DEEMED TO BE 'BEST JUDGMENT' AND DESERVES TO BE QUASHED IN VIEW OF THE PECULIAR FACTS AND CIRCUMSTA NCES OF THE CASE. 6. THAT THE ACTION OF THE CIT(A) IN CONFIRMING THE EX- PARTE ORDER PASSED BY THE AO U/S 143(3) INSTEAD OF U/S 144 IS B ASICALLY WRONG AND UNCALLED FAR AND BOTH DECISIONS ARE THUS ILLEGAL. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS ARGUED THAT NOTICE UNDER SECTION 143(2) OF THE INCO ME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS NEVER S ERVED UPON THE ASSESSEE, THEREFORE, THE ASSESSMENT FRAMED WITHOUT SERVICE OF NOTICE IS NOT SUSTAINABLE IN THE EYES OF LAW. HE HAS ALSO ARGUED THAT NOTICE OF HEARING WAS NOT RECEIVED FROM THE OFFICE OF THE LD. CIT(A) AND THE LD. CIT(A) HAS ADJUDICATED THE APPEAL EX-PARTE WITHOUT AFFORDING O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R. HAS INVITED OUR ATTENTION TO THE ASSES SMENT ORDER WITH THE SUBMISSION THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED THROUGH SPEED POST, THEREFORE, THE CONTENTION OF TH E LD. COUNSEL FOR THE ASSESSEE IS NOT PROPER THAT NOTICE UNDER SECTION 14 3(2) OF THE ACT WAS NOT SERVED UPON THE ASSESSEE. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER A UTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT WITH R ESPECT TO SERVICE OF NOTICE :-3-: UNDER SECTION 143(2) OF THE ACT, THE ASSESSING OFFI CER HAS RECORDED IN HIS ORDER THAT NOTICE WAS ISSUED THROUGH SPEED POST, BU T SAID NOTICE WAS RECEIVED BACK UN-SERVED BY THE POSTAL AUTHORITIES. IT IS NOT CLEAR FROM THE ASSESSMENT ORDER WHETHER NOTICE UNDER SECTION 143(2 ) OF THE ACT WAS SERVED UPON THE ASSESSEE OR NOT. BUT IN ANY CASE, NEITHER A SPECIFIC GROUND HAS BEEN RAISED BEFORE US NOR ANY AFFIDAVIT IN THIS REGARD HAS BEEN FILED, AS THE DISPUTE WAS RAISED WITH REGARD TO THE SERVICE O F NOTICE UNDER SECTION 143(2) OF THE ACT. WE HAVE ALSO CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) AND WE FIND THAT THIS ISSUE WAS NOT ADJUDICA TED BY THE LD. CIT(A). MOREOVER, THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE AGAINST THE ASSESSEE. WE ARE, THEREFORE, OF THE VIEW THAT IN T HE INTEREST OF JUSTICE, THE ISSUE OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT REQUIRES TO BE ADJUDICATED BY THE LD. CIT(A). SINCE THE LD. CIT(A ) HAS DECIDED THE APPEAL EX-PARTE WITHOUT AFFORDING OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE, WE SET ASIDE HIS ORDER AND RESTORE THE MATTER TO HIS F ILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE WITHIN A PERIOD OF THREE MONTHS FROM T HE DATE OF RECEIPT OF THIS ORDER. WE ALSO DIRECT THE ASSESSEE TO PUT HIS APPEARANCE BEFORE THE LD. CIT(A) AND EXTEND ALL SORT OF CO-OPERATION IN DISPO SAL OF THE APPEAL WITHIN THE SPECIFIED TIME. ACCORDINGLY APPEAL OF THE ASSE SSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y A DAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:26 TH MARCH, 2015 JJ:1703 :-4-: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR