SMT. VANVASHI BAI PARATE ,BALAGHAT vs. INCOME TAX OFFICER, BALAGHAT

This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-1, Jabalpur (‘CIT(A)’ for short) dated 09.7.2018, dismissing the assessee’s appeal contesting her assessment u/s. 147 r/w s. 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) dated 29.3.2014 for assessment year (AY) 2010-11.

The only issue arising in this case is the maintainability of the impugned order, assailed by the assessee principally on account of lack of reasonable opportunity of hearing (Gd. 2); Ground 1 being general in nature, not warranting any specific adjudication. The facts of the case are simple and admitted. The notice of hearing (in the appellate proceedings) dated 25.6.2018 Vanvasi Bai Parate v. ITO (AY 2010-11) (for 06.7.2018) came back unserved with the postal remarks to the effect that the assessee’s house is locked. In view thereof, the ld. CIT(A) proceeded ex parte the assessee-appellant, dismissing her appeal due to her inability to show as to how the assessment as made was not correct. The decision by the ld. CIT(A) and his order is thus not on merits. It is, with respect, self-contradictory. When the notice of hearing has admittedly not been served on the assessee, where is the question of she presenting her case before him? There is no whisper of any mala fides in the non-service of the notice, or of the assessee deliberately avoiding its’ service, in his order. In fact, the impugned order, issued on 09.7.2018, could be communicated to the assessee (at the stated address) only several months later, on 19.02.2019. Sure, the assessee’s responsibility for the said non-service cannot be denied, but the continued absence from her residence, the stated address, was not, clearly, with a view to avoid service, but for some personal reasons. The appeal before the ld. CIT(A) was preferred as far back as in April, 2014, by her legal heir, Shri K.C. Parate, who could well be residing/located at a different place at the relevant time.

Proper opportunity of hearing is the sine qua non of judicial proceedings, the premise of which is a decision on merits upon allowing reasonable opportunity of being heard. Further, the first appellate authoiry represents the final opportunity before and adjudication by the Revenue, and there are serious fetters on the production of evidence before the higher appellate forums. The impugned order is, thus, not sustainable in law. The purpose of observing the assessee’s conduct is to determine if any cost, under the facts and circumstances of the case, merits being imposed thereon. The same, though no doubt wanting, inasmuch as the assessee ought to have communicated his current address, cannot though be regarded as evasive. Appeal has been preferred by a legal heir, who could have strong reason/s for keeping the assessee’s place locked for months. This, or other personal reasons, seem to have been responsible for the Vanvasi Bai Parate v. ITO (AY 2010-11) continued absence from the stated address, which is the same as that furnished in the return of income as well as the assessment order. The Revenue, who should insist on furnishing of the email address in the official communications, as indeed mentioned in F/36, also did not make any serious attempt to ascertain the assessee’s whereabouts, or even follow the due process for serving the notice through affixture. The notice, in view of the assessee’s death, is liable to be served on all her legal heirs/representatives, the assessment order bearing reference to her daughter, Jyoti Asai. No cost is accordingly imposed.

The ld. counsel for the assessee, Shri Sharma, assured during hearing of a responsible and cooperative conduct (by and on the assessee’s behalf) in the set aside proceedings. The matter, setting aside the impuged order, is restored to the file of the ld. CIT(A) for adjudication afresh on merits in accordance with law. He shall further ensure bringing on record all the legal representatives of the deceased assessee in-as-much as all are liable to be deemed as assessees. I decide accordingly.