Gurdev Kaur, Chandigarh V. ITO, Chandigarh

ITA 980/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68599 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: A K JINDAL
• Keywords: Validity of assessment
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 980, 981 & 982/CHD/2013 ASSESSMENT YEAR : 2009-10 GURDEV KAUR VS. I.T.O. WARD 5(4) H NO. 18 (OLD NO. 652) CHANDIGARH VILLAGLE HALLOMAJRA CHANDIGARH BXSPK 7378D (APPELLANT) (RESPONDENT) APPELLANT BY SHRI A.K. JINDAL RESPONDENT BY: SHRI J.S. NAGAR DATE OF HEARING 3.12.2013 DATE OF PRONOUNCEMENT 23.12.2013 O R D E R PER T.R.SOOD, A.M THESE APPEALS ARE DIRECTED AGAINST THE ORDER DATED 3.7.2013 OF THE LD. CIT(A), CHANDIGARH. ITA NO. 980/CHD/2013 2 IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOW ING GROUNDS OF APPEAL: 1 THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE DEMAND NOTICE AND ASSESSMENT ORDER U/S 144 DATED 20 .12.2011 MUST HAVE BEEN SERVED ON THE APPELLANT ON THE GROUN D THAT THESE WERE SENT BY SPEED POST WITHOUT VERIFYING THE FACT WHETHER THESE WERE ACTUALLY SERVED ON THE APPELLANT OR NOT AND TH US DISMISSING APPEAL AS BEING NOT IN TIME. 2 THAT THE LD. CIT(A) IS NOT ADJUDICATING THE GROUN D OF APPEAL CHALLENGING THE VALIDITY OF ASSESSMENT PROCEEDINGS AND ORDER PASSED U/S 143(3) AND 144 ON THE GROUND THAT NOTICE U/S 142(1) AND 143(2) HAS NOT BEEN SERVED ON THE APPELLANT. 3 A THAT THE LD. CIT(A) IS NOT JUSTIFIED IN NOT ADJ UDICATING THE APPEAL ON MERITS UNDER THE FACTS AND CIRCUMSTAN CES OF THE CASE. 2 B THE APPELLANT DISPUTES THE QUANTUM OF ADDITION MADE. 3 AFTER HEARING BOTH THE PARTIES WE FIND THAT IN TH IS CASE THE ASSESSEE HAS DISPUTED THE SERVICE OF NOTICE. IN FA CT BEFORE US THE LD. COUNSEL OF THE ASSESSEE HAS FILED A COPY OF THE REPLY GIVEN BY THE ASSESSING OFFICER VIDE LETTER DATED 13 .11.2013 IN RESPONSE OF AN RTI QUERY. THIS CLEARLY SHOWS THAT THE NOTICE U/S 143(2) HAD BEEN SENT BY SPEED POST BUT UNDER TH E STATUS OF THE DELIVERY COLUMN IT IS STATED THAT THE SAME WERE UNDELIVERED BUT THE POSTAL AUTHORITY SENT THEM BACK WITH THE RE MARKS NO SUCH PERSON ON THIS ADDRESS. 4` THE LD. CIT(A) DISMISSED THE APPEAL BY OBSERVING THAT THE APPEAL WAS LATE. IN FORM 35 THE DATE OF SERVICE OF DEMAND NOTICE WAS SHOWN AS 1.8.2012 BUT NO EVIDENCE FOR TH E SAME WAS FILED. HE HAS FURTHER STATED THAT ASSESSMENT ORDER AND NOTICE WITH DEMAND NOTICE WAS DISPATCHED ON 20.12. 2011 BY SPEED POST, THEREFORE, HE ASSUMED THAT THE SAME MU ST HAVE BEEN RECEIVED WITHIN 4-5 DAYS, THEREFORE, APPEAL O F THE ASSESSEE WAS TREATED AS LATE AND SINE NO CONDONATIO N OF PETITION WAS FILED, APPEAL WAS DISMISSED IN LIMINE. 5 THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT RE PLY IN RESPONSE TO RTI QUERY CLEARLY SHOW THAT NOTICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE AND THE ASSESSEE CAME TO KNOW ABOUT ASSESSMENT ORDER ONLY WHEN A SHOW CAUSE NOTIC E FOR PENALTY WAS RECEIVED BY THE ASSESSEE AND THEREAFTER THE ASSESSEE OBTAINED THE COPY OF THE DEMAND NOTICE FRO M THE OFFICE OF THE ASSESSING OFFICER AND FILED APPEAL. THE LD. CIT(A) NEVER GAVE AN OPPORTUNITY TO THE ASSESSEE FOR EXPLA INING IF THERE WAS ANY DELAY ACCORDING TO HIM. SINCE IN THI S CASE NOTICE U/S 143(2) ITSELF WAS NOT SERVED, ASSESSMENT SHOULD BE ANNULLED. 6 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE STR ONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 7 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT IT IS NOT CLEAR ON WHAT BASIS THE LD. CIT(A) HAS ASSUMED THAT NOTICE OF DEMAND WAS SERVED TO THE ASSESSEE WITHIN 4-5 DAY S FROM THE 3 DATE OF DISPATCH. THE LD. CIT(A) HAS NOT DECIDED T HE ISSUE ON MERIT. IT IS CLEAR THAT PROPER OPPORTUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE TO EXPLAIN HER CASE, THEREFORE, IN TH E INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE MATTER BACK TO HIS FILE WITH A DIRECTION TO PRO VIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE AND THEN DECIDE THE ISS UE. NEEDLESS TO SAY THAT THE ASSESSEE SHOULD ALSO COOPE RATE IN THE APPELLATE PROCEEDINGS. 8 IN THE RESULT, ITA NO. 980/CHD/2013 IS ALLOWED FO R STATISTICAL PURPOSES. ITAS NO. 981 & 982/CHD/2013 9 THESE APPEALS ARE FILED AGAINST THE CONFIRMATION OF PENALTY U/S 271(1)(B) AND 271(1)(C). SINCE THE ASSE SSMENT ORDER HAS ITSELF BEEN SET ASIDE BY US TO THE FILE O F LD. CIT(A) BECAUSE THERE IS DISPUTE REGARDING SERVICE OF NOTIC E ALSO. THEREFORE, IN OUR OPINION, TO MEET THE ENDS OF JUS TICE, THESE TWO APPEALS SHOULD ALSO BE RESTORED TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AFTER ADJUDICATING THE QUANTUM A PPEAL. 10 IN THE RESULT, ITAS NO.981 & 982/CHD/2013 ARE AL LOWED FOR STATISTICAL PURPOSES. 11 IN THE RESULT, ITAS NO. 980, 981 & 982/CHD/2013 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.12.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.12.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 4