RAJSHREE CHOUDHARY, BHAGALPUR V. ITO, WARD-1(20, BHAGALPUR

ITA 74/PAT/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1126 (ITAT-PATNA)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-09-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Principle of natural justice; Right to appeal; Set aside

Judgement Text

1 ITA NO. 74/PAT/2020 RAJSHREE CHOUDHARY, AY 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 74/PAT/2020 ASSESSMENT YEAR:2012-13 RAJSHREE CHOUDHARY (PAN: ATGPS8829C) VS. INCOME TAX OFFICER, WARD-1(2), BHAGALPUR APPELLANT RESPONDENT DATE OF HEARING 11.12.2020 DATE OF PRONOUNCEMENT 18.12.2020 FOR THE APPELLANT N O N E FOR THE RESPONDENT SHRI AJAY KUMAR, DR ORDER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), BHAGALPUR DATED 17-08-2018 FOR ASSESSMENT YEAR 2012-13. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. AT THE TIME OF HEARING IT IS NOTED THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER EX PARTE. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT APPELLATE ORDER HAS BEEN PASSED ON 17.08.2018. FROM A PERUSAL OF GROUND NO.8, IT IS DISCERNED THAT THE GROUNDS RAISED BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL), BHAGALPUR BY THE APPELLANT WAS NOT CONSIDERED BY THE APPELLATE COURT PROPERLY DUE TO EX PARTE ORDER, THEREFORE, THE GROUNDS ARE RELEVANT FOR THE PURPOSE OF PROPER ADJUDICATION OF THE CASE BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL AS WELL. IT IS NOTED BY THE LD. CIT(A) THAT THE HEARING OF APPEAL WAS FIXED ON 16.08.2018 FOR WHICH NOTICES DATED 28.09.2016, 14.05.2018, 14.06.2018 AND 01.08.2018 WAS ISSUED AND THE NOTICES WERE RETURNED WITH THE POSTAL REMARKS THAT THE NOTICES ARE UNCLAIMED AND LD. CIT(A) NOTED THAT THE NOTICES WERE ISSUED TO THE ADDRESS AS MENTIONED IN FORM NO. 35, FILED BY THE ASSESSEE. SO, HE DISPOSED OFF THE APPEAL AS PER THE INFORMATION AVAILABLE ON RECORDS. HOWEVER, IT IS NOTED THE IMPUGNED APPELLATE ORDER HAS BEEN PASSED EX PARTE QUA THE ASSESSEE WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING WHICH IS IN VIOLATION OF NATURAL JUSTICE. 2 ITA NO. 74/PAT/2020 RAJSHREE CHOUDHARY, AY 2012-13 3. IT IS NOTED THAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER. EVEN THOUGH THE LD. CIT(A) HAS GIVEN THE DATE OF NOTICES, THE PROOF OF SERVICE OF NOTICE HAS NOT BEEN SPELLED OUT. IN A VAGUE MANNER THE LD. CIT(A) HAS STATED THAT THE NOTICES HAVE BEEN SENT TO THE ADDRESS STATED IN FORM 35. HOWEVER, ACCORDING TO THE ASSESSEE, HE HAS NOT BEEN PROVIDED PROPER OPPORTUNITY OF HEARING WHICH IMPLIES NON-RECEIPT OF NOTICE. AND WHEN THE ASSESSEE HAS RECEIVED THE IMPUGNED ORDER FROM LD. CIT(A), IT IS WONDERED AS TO HOW THE NOTICES COULD NOT HAVE REACHED THE ASSESSEE. ANYWAY, IN THE LIGHT OF FACTS DISCUSSED, IT IS NOTED THAT THE LD. CT(A) HAS PASSED THE ORDER WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE IMPUGNED ORDER OF LD. CIT(A) IS ERRONEOUS FOR NON-APPLICATION OF MIND AND FOR VIOLATION OF SECTION 250(6) OF THE ACT. IT SHOULD BE KEPT IN MIND THAT IF AN ASSESSEE IS AGGRIEVED BY THE ORDER OF THE AO, THEN HE (ASSESSEE) HAS THE STATUTORY RIGHT TO FILE AN APPEAL BEFORE THE LD. CIT(A). THIS VALUABLE/STATUTORY RIGHT OF THE ASSESSEE CANNOT BE LIGHTLY BRUSHED ASIDE . HAVING SAID SO, I EXPECT THE ASSESSEE TO BE DILIGENT WHILE PURSUING THE APPEAL. IN THE LIGHT OF ABOVE DISCUSSION, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE APPEAL IS RESTORED BACK TO HIM, WITH DIRECTION TO PASS A SPEAKING ORDER BY GOING THROUGH THE STATEMENTS OF FACTS AS WELL AS ORAL/WRITTEN SUBMISSIONS/DOCUMENTS, IF ANY, FILED BY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO BE DILIGENT AND EITHER TO APPEAR OR/AND FILE NECESSARY PAPERS BEFORE HIM, IF ADVISED TO DO SO ; AND THE LD. CIT(A) TO PASS A SPEAKING ORDER ON EACH GROUNDS RAISED BY THE ASSESSEE AS STIPULATED U/S 250(6) OF THE ACT AND IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18TH DECEMBER, 2020. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 18TH DECEMBER, 2020 JD(SR.P.S.) 3 ITA NO. 74/PAT/2020 RAJSHREE CHOUDHARY, AY 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT RAJSHREE CHOUDHARY, C/O RISHIKESH CHOUDHARY, FLAT NO. 1626, TOWER 16, PURVANCHAL ROYAL PARK, NOIDA, SECTOR 137, UTTAR PRADESH-201304 2 RESPONDENT ITO, WARD 1(2), BHAGALPUR 3. 4. 5. CIT(A), BHAGALPUR CIT, BHAGALPUR DR, ITAT, PATNA. / TRUE COPY, BY ORDER, SENIOR PVT. SECY/DDO.