Susheel Kumar, Faridabad V. ITO, Ward- 3(5), Hapur

ITA 7304/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5444 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 07-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.-7304/DEL/2017 ( ASSESSMENT YEAR: 2008-09) SUSHEEL KUMAR B-159, NEHRU GROUND, NIT FARIDABAD HARYANA BFUPK3950B VS ITO WARD 3(5) HAPUR ASSESSEE BY NONE REVENUE BY MS. ASHIMA NEB, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DT. 31.3.2017 OF CIT(A) GH AZIABAD PERTAINING TO 2008-09 AY ON THE FOLLOWING GROUNDS: 1. THAT THE APPELLANT IS AN AGRICULTURIST AND HAVING NO KNOWLEDGE OF INCOME TAX APPLICABILITY. 2. THAT THE APPELLANT HAS SOLD AGRICULTURAL LAND. SAL ES CONSIDERATION OF LAND IS DEPOSITED IN THE BANK ACCOUNT. 3. THAT THE LAND SOLD IS USED BY THE APPELLANT IS IN A GRICULTURE ONLY. 4. THAT THE NOTICES WERE NOT SERVED UPON THE APPELLANT AND APPELLANT WAS NOT HAVING ANY IDEA OF THIS CASE OTHERWISE HE WOULD HAVE APPEARED BEFORE THE ITO HIMSELF OR THROUGH SOME AUTHORIZED R EPRESENTATIVE. 5. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD.AO IN MAKING THE IMPUGN ED ADDITION IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, ALTER O R AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL THE GROUNDS ARE WITH OUT PREJUDICE TO EACH OTHER. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. THE RECORD SHOWS THAT THE ORDER PASSED BY THE AO IS U/S 144(1)/147 OF THE ACT AND THE IMPUGNED ORDER IS ALSO AN EX-PARTE ORDER. A PERUSAL OF THE RECORD SHOWS THAT THREE SPECIFIC NOTICES WERE ISSUED BY THE CIT( A) TO THE ASSESSEE AT VILLAGE KHERPUR, KHAIRABAD, PILKHUWA, HAPUR. DESPITE THIS THE ASSESSEE REMAINED UNREPRESENTED. IT IS SEEN THAT THE ADDRESS MENTION ED BEFORE THE ITAT IN FORM NO. 36 COLUMN NO. 10 THE ASSESSEE HAS GIVEN THE FOL LOWING ADDRESS FOR INTIMATION OF INTIMATION OF NOTICES ETC.: B 519, NEHRU GROUND, NIT, FARIDABAD DATE OF HEARING 23.04.2018 DATE OF PRONOUNCEMENT 26 .04.2018 ITA NO. 730 4/DEL/2017 2 3. ON PERUSAL OF THE RECORD IT IS SEEN THAT THE NOT ICES AT WHICH THE AO AND THE CIT(A) WERE COMMUNICATING WITH THE ASSESSEE IS IN VILLAGE KHERPUR, KHAIRABAD, PILKHUWA, HAPUR, WHEREAS THE ASSESSEE AS PER INFORMATION FILED BEFORE THE ITAT IS SITUATED AT FARIDABAD. ACCORDIN GLY, AFTER HEARING THE LD. SR. DR WHO THOUGH RELIED UPON THE ORDERS HAD NO OBJECTI ON IF THE MATTER IS REMANDED TO THE CIT(A) FOR AFFORDING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. THE IMPUGNED ORDER ACCORDINGLY IS SET ASIDE BACK T O THE FILE OF THE CIT(A). 4. THE FACTS ON RECORD AS PER THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE CIT(A) WHICH IN FACT ARE ARGUMENTS/ASSERTIONS WHICH HAVE BEEN EXTRACTED IN THE ORDER SHOWS THAT THE ASSESSEE CLAIMS THAT HE IS AN AGRICULTURIST AND HIS INCOME IS CONSEQUENTLY EXEMPT FROM INCOME TAX AS A RESULT THE REOF INCOME TAX RETURN WAS NOT FILED. ADDRESSING THE NOTICES SENT BY THE AO W HICH REMAINED UN-RESPONDED TO IT WAS STATED THAT THEY MAY HAVE BEEN SENT TO HI S HOME TOWN ADDRESS, BUT HAD NOT BEEN RECEIVED OR IF RECEIVED BY OTHER FAMILY ME MBERS WHO ALSO BEING AGRICULTURISTS NEITHER UNDERSTOOD THE MEANING NOR T HE IMPORTANCE OF THE NOTICE. ONLY ON THE RECEIPT OF THE EX-PARTE ASSESSMENT ORDE R DT. 15.1.2016 RECEIVED ON 28.1.2016 THE ASSESSEE CAME TO KNOW ABOUT THE SAME. ACCORDINGLY, IN THE LIGHT OF THE PECULIAR FACTS & CIRCUMSTANCES OF THE PRESEN T CASE, AND IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IMPUGNED ORDER IS SET ASID E BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE CIT(A) SHALL SERVE NOTICE UPON THE ASSESSEE AT THE ADDRESS INTIMATED IN COLUM N NO. 10 IN FORM NO. 36 AND ALSO THE ADDRESS PROVIDED IN FORM NO. 35 BEFORE THE CIT(APPEALS) AT THE VILLAGE KHERPUR KHAIRABAD, PILKHUWA, HAPUR I.E. THE HOME TO WN ADDRESS ALSO BY WAY OF ABUNDANT CAUTION. THE ASSESSEE IN ITS OWN INTEREST IS DIRECTED TO ENSURE FULL AND PROPER PARTICIPATION AND NOT ABUSE THE TRUST REPOSE D. IT IS MADE CLEAR AS IN THE EVENTUALITY OF ABUSE OF THE SAME CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD . SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEA RING ITSELF. ITA NO. 730 4/DEL/2017 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26.04.201 8. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED: 26.04.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 23.4.18/24.4.18/26.4.18 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 26.4.18 KEPT FOR PRONOUNCEMENT ON 26.4.18 FILE SENT TO THE BENCH CLERK 26.4.18 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.