GOPINATH MOHANTY,BHUBANESWAR vs. DCIT, CIRCLE-2(1), BHUBANESWAR

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ITA 184/CTK/2017Status: DisposedITAT Cuttack12 March 2018AY 2011-124 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal, acknowledging the reasonable cause presented by the assessee. The Tribunal set aside the CIT(A)'s order and restored the matter to the AO for fresh assessment.

What were the facts?

The assessee's appeal was delayed due to the prolonged illness and subsequent death of his mother, which caused him mental distress and inability to appear before the Assessing Officer (AO) and Commissioner (Appeals). The AO made an ex-parte assessment under Section 144.

What were the issues?

Whether the ex-parte assessment made by the AO due to the assessee's inability to appear owing to family circumstances is valid. Whether the assessee was denied a reasonable opportunity of being heard.

Which sections of the Income-tax Act were involved?

Section 144,Section 68,Section 69

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 Appellant: Shri Dillip Kumar Mohanty, AR
For Respondent: Shri D.K.Pradhan, DR
Hearing: 06/03

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. 184/CTK/2017 Assessment Year : 2011-2012

Sri Gopinath Mohanty, Plot Vs. DCIT, Circle 2(1), No.550/2437, Upper Kanan Bhubaneswar Vihar, Phase-2, Jayadev Kishaya Kendra, Patia, Bhubaneswar. PAN/GIR No.AFMPM 4226 P (Appellant) .. ( Respondent)

Assessee by : Shri Dillip Kumar Mohanty, AR Revenue by : Shri D.K.Pradhan, DR

Date of Hearing : 06/03/ 2018 Date of Pronouncement : 23 /03/ 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)- 1, Bhubaneswar dated 7.11.2016 for the assessment year 2011-

12.

The assessee has raised the following grounds of appeal:

“1. That the assessment order dated 12.3.15 passed by the AO and order dated 7.11.2016 passed by the CIT(A)-1, Bhubaneswar are void abinito, against the natural justice, unjustified, erroneous, arbitrary, contrary to facts , bad in law, without jurisdiction and/or in excess of jurisdiction and legally untenable. 2. For that in absence of notice u/s.143(2) of the I.T.Act, 1961 the proceeding initiated and completed thereafter u/s.144 are without \ jurisdiction, illegal and not sustainable on fact and law, hence liable to be quashed. 3. For that the assessment as framed by the Learned Assessing Officer is not based on fact and therefore not maintainable in the eyes of law.

2 ITA No. 184/CT K/ 2017 Asse ssment Year : 20 11- 201 2

4.

That the Ld CIT Appeals -I, Bhubaneswar has erred on fact as well as on law in dismissing the appeal in lime line, even without considering the merits of the case otherwise. 5. For that the Ld. A.O. as well as the Ld. CIT Appeals-I has erred on fact and law in considering Rs. 72,878.00 as income under the head other sources and added back to the total income without a speaking order only placing reliance on the statement of 26AS. 6. For that the Ld. A.O. as well as the Ld. CIT (A)-l, is arbitrary & unjustified to add a sum of Rs. 19,37,000/- under the head cash credit U/s. 68 of the I.T. Act, without any speaking order, only placing reliance on the AIR 8s CIB Information and as such the addition of the aforesaid sum are not only unjustified but also illegal 8s liable to be deleted. 7. For that the addition of Rs. 3,32,000/- as unexplained expenditure U/s. 69 of the I.T. Act on the basis of the AIR information without any independent enquiry, are not only without authority of law but also unjustified, illegal and arbitrary. 8. For that the order of assessment as framed is otherwise bad in law and liable to be quashed. 9. For that the assessee was deprived from the benefit of reasonable opportunity of being heard and deprived from the benefit of natural justice. 10. That the appellant craves leave to add to supplement modify the grounds herein above before or at the time of hearing of the appeal.” 3. The appeal filed by the assessee is barred by limitation by 63 days.

The assessee has filed condonation petition supported by affidavit for

condoning the delay in filing the appeal. After going through the

condonation petition, we find that the assessee had reasonable cause for

not filing the appeal within the stipulated time. Ld D.R. did not have any

objection for condoning the delay. We, therefore, condone the delay of

63 days in filing the appeal before the Tribunal and admit the appeal for

hearing.

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4.

At the outset, ld A.R. of the assessee submitted that the

assessment has been made by the Assessing Officer u/s.144 of the Act on

12.3.2015 as the assessee failed to appear before the Assessing Officer

due to prolonged illness of his mother, who ultimately succumbed to

death. In support of his contention that death of Lakshmi Mohanty,

mother of the assessee on 22.1.2015, a certificate dated 18.2.2015

issued by Cuttack Muncipal Corporation is placed on record. Ld A.R. also

submitted that after the death of his mother, the assessee was not in a

sound mind and for the same reason, the assessee also could not appear

before the CIT(A) and hence, the CIT(A) passed the order exparte without

affording proper opportunity to the assessee. He prayed that matter

should be restored back to the file of the Assessing Officer to present the

case of the assessee as he was prevented by a reasonable cause for not

complying with the notice of hearing issued by the Assessing Officer and

the CIT(A). It was submitted that the assessee is having all evidences

and explanations and the assessee has a very good case in his favour

which the assessee will be able to prove before the Assessing Officer by

filing necessary evidences and details.

5.

On the other hand, ld D.R. vehemently opposed the submission of

ld A.R. of the assessee.

6.

We have heard the rival submissions, perused the orders of lower

authorities and materials available on record. We find force in the

submission made by ld A.R.of the assessee. The evidences produced

before us show that the assessee was under the mental agony due the

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illness of his mother and consequent death on 22.1.2015 and further

depression post death, which fact is proved by filing the death certificate

before us. We are of the considered view that in the interest of

rendering substantial justice to the assessee, the order of the CIT(A)

should be set aside and matter should be restored back to the file of the

Assessing officer to reframe the assessment after allowing reasonable and

proper opportunity of hearing to the assessee. The assessee is directed

to produce all details and evidences before the Assessing Officer. Hence,

the appeal of the assessee is allowed for statistical purposes.

7.

In the result, the appeal filed by the assessee is allowed for

statistical purposes.

Order pronounced on 23 /03/2018. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 23 /03/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : 2. The Respondent. 3. The CIT(A)- 4. Pr.CIT- 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//

BY ORDER,

SR.PRIVATE SECRETARY ITAT, Cuttack

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