MAMATA MOHANTY, L/H. OF LATE NARESH CHANDRA MOHANTY,PURI vs. ITO, PURI WARD, PURI

ITA 20/CTK/2018Status: DisposedITAT Cuttack25 September 2018AY 2010-114 pages

AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) had granted several opportunities, but the assessee did not appear. However, in the interest of substantial justice, the Tribunal restored the matter to the CIT(A) for fresh adjudication, subject to the assessee paying a cost of Rs. 5,000/-.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) for non-appearance. The assessee contended that they were not afforded a reasonable opportunity of hearing and that the assessment was made ex-parte. The assessee also mentioned that the deceased assessee was suffering from a kidney ailment and died before the assessment completion.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal ex-parte without affording a reasonable opportunity of hearing, and whether the assessment under Section 144 was made arbitrarily without proper cause.

Which sections of the Income-tax Act were involved?

Section 144

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK

Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE

For Respondent: Shri Subhendu Datta, DR

Hearing: 25/09Pronounced: 25/09

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No. 20/CTK/2018 Assessment Year : 2010-2011

Mamata Mohanty, Legal heir Vs. ITO, Puri Ward, Puri of Late Naresh Chandra Mohanty, At: Duttatota, Puri. PAN/GIR No.ABDPM 4411 H (Appellant) .. ( Respondent)

Assessee by : None (written submission) Revenue by : Shri Subhendu Datta, DR

Date of Hearing : 25/09/ 2018 Date of Pronouncement : 25/09/ 2018

O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of

the CIT(A)- 2 Bhubaneswar dated 28.6.2017 for the assessment

year 2010-2011.

The assessee has raised the following grounds of appeal:

“1. For that the order of assessment is against the settled principle of law and against the materials available on record.

For that the order of assessment is in contravention to the return submitted by the assessee and therefore, is not tenable in the eye of law.

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For that the order of assessment is highly arbitrary, exorbitant and the same being made without any reasonable cause and the material at hand, the same should have been set aside by the learned Appellate Court.

For that the learned Commissioner of Income Tax (Appeal) dismissed the appeal in the ground of non appearance which is liable to set aside.

For that both the forums below are wrong in holding the income of the appellant in such a higher side and the same being ex-parte in nature, are liable to be set aside.

For that the impugned order of assessment and the impugned order passed by the First Appellate Court being made on surmises and conjecture, the said orders are required to be set aside by interference of this Honorable Court.

For that the assessment as has been made under Section 144 of the Income Tax Act is bad in law in view of the fact that the appellant is a regular assessee and his assessment was completed earlier basing on the return submitted by the assessee. The learned forums below has not indicated any reason of dis-believing the statement of income submitted in course of filling of return for which the impugned orders are liable to be set aside.

For that both the impugned orders have been passed violating the principles of natural justice for which the same are liable to be set aside/ quashed. 9. For that the learned assessing officer rejected the Audited Return and estimated the profit @ 4% of the gross turnover while completing the assessment U/s 144 of the Income Tax Act which has got no reasonable basis in the present fact and circumstances of the case.

10.

For that the Assessee at the time of Assessment suffering kidney damage and treatment at Bangalore died before completion of assessment for which books of account could not produced before the Assessing Officer.

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11.

For that the impugned orders passed by both the courts below are otherwise bad, illegal and liable to be set aside.

12.

For that the appellant craves leave to submit details at the time of hearing.” 3. None appeared on behalf of the assessee when the matter

was called for hearing. However, a written submission is filed by

the assessee, which is on record.

We find that the assessee in ground No.4 & 5 has agitated

that the CIT(A) has dismissed the appeal of the assessee exparte

without affording reasonable opportunity of hearing to the

assessee.

On perusal of the order of the CIT(A), we observe that the

CIT(A) has allowed several opportunities to the assessee and the

assessee has not put in appearance before him. However, in the

interest of substantial justice, we consider it appropriate to restore

the matter to the file of the CIT(A) but with imposition of cost on

the assessee for his conduct before the CIT(A). We, therefore,

direct the assessee to deposit a cost of Rs.5,000/- on or before

31.10.2018. The assessee is further directed to file copy of the

challan of deposit of cost before the CIT(A) as an evidence in

compliance of the order of this Tribunal as well as to file copy of

the same to the Tribunal. With these directions, the appeal of the

assessee is restored to the file of the CIT(A) for fresh adjudication.

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In the result, appeal of the assessee is allowed for statistical

purposes.

Order pronounced on 25/09/2018.

Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 25 /09/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Mamata Mohanty, Legal heir of Late Naresh Chandra Mohanty, At: Duttatota, Puri. 2. The Respondent. ITO, Puri Ward, Puri 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT-2, Bhubaneswar 5. DR, ITAT, Cuttack By order 6. Guard file. //True Copy// Sr. Pvt. Secretary, ITAT, Cuttack

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