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Income Tax Appellate Tribunal, JODHPUR BENCH (SMC
Before: SHRI N.K. SAINISmt. Gulab Devi Khant,
This is an appeal by the widow of the deceased assessee against the order dated 24.4.2018 of Ld. Commissioner of Income Tax (Appeals)- 1, Udaipur.
Following grounds have been raised in this appeal:- 1. The Ld. Commissioner Appeals was sent the required documents for the appeal.
The grounds of appeal is as per the grounds filed for the appeal to the Commissioner Appeals.
The Appellant Lady is a widow & earning her bread & butter by working in the houses of others. She is a maid servant.
She is unaware of the rules of the Income Tax Act and had not done any offence.
The appellant reserves the right to add / delete any grounds of appeal.
The facts of the case in brief are that the Assessing Officer issued noticed u/s 148 of the Income Tax Act, 1961 (in short 'the Act') for the reasons that the assessee had not shown capital gain on the land sold for Rs. 17,68,000/- on 16.2.2004. In response to the notice u/s 148 of the Act, the return was filed on 2.3.2006 declaring a loss of Rs. 9,91,081/-. However, the assessment was framed at an income of Rs. 17,68,000/- which included the addition of unexplained new cash creditors of Rs. 15,90,000/- and short term capital gain of Rs. 64,918/-. The Assessing Officer also initiated penalty proceedings u/s 271 (1) (c) of the Act and levied the penalty of Rs. 5,47,700/-.
Being aggrieved, the matter was taken to the Ld. CIT(A) who dismissed the appeal ex-parte by observing as under:- "2.1 The form of appeal before the CIT (Appeals) and time limit for filing of appeal are laid down in Section 249 of the Act.
2.2 As per sub section (1) of Section 249, the appeal shall be in the prescribed form, verified in the prescribed manner, and, in case of an
appeal made to the CIT (Appeal), on or after 01.10.1998, shall be accompanied by fee as prescribed in the said sub section. The prescribed form is Form No. 35, which is required to be accompanied by copy of order appealed against and the notice of demand in original.
2.3 In the instant case notice of demand in original was not enclosed with Form 35. Challan for payment of appeal fees of Rs.250/-, payable u/s 249(1), was also not filed with Form 35.
In view of the defects in filing of appeal, as noted in the preceding para, the appeal is prima facie non maintainable. However, in the interest of natural justice, the appellant was given an opportunity to remove the above defects by various letters issued during the instant proceedings, details of which are given in the table below-
S.No. Date of Issue of Mode of service Date of submission of Remarks 1. 20.05.2016 By Reg. post Within 10 days of receipt No compliance 2. 11.10.2017 By Speed post Within 5 days of receipt No compliance No. ER640239308IN dt. 13.10.2017
20.04.2018 By Speed post No 27.04.2018 No compliance RR547663978IN dt. 20.04.2018
but the appellant failed to remove the defects in the appeal filed by her. In these circumstances, I have no option but to hold the appeal non maintainable.
For statistical purposes, the appeal will be treated as dismissed"
Now the legal heir of the deceased assessee is in appeal.
During the course of hearing, the Ld. Sr. DR supported the orders of the authorities below and the legal heir of the deceased assessee moved an application for seeking the adjournment, however, no reason has been assigned, therefore, the said application was rejected.
In the present case, it is noticed that the Ld. CIT(A) dismissed the appeal in limine. She mentioned that deficiency letter was issued but there was no compliance. However, it is not mentioned to whom the deficiency letter was served when the assessee has already expired. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. I, therefore, by keeping in view the principles of
natural justice, deem it appropriate to set aside this case back to the file
of the ld. CIT(A) to be adjudicated afresh in accordance with law after
providing due and reasonable opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical
purposes.
(Order Pronounced in the Court on 07.05.2019)
Sd/- (N.K. SAINI) Vice President Dated : 07.05.2019 “आर.के.” आदेशक���त�ल�पअ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु�त/ CIT 4. आयकरआयु�त (अपील)/ The CIT(A) 5. �वभागीय��त�न�ध, आयकरअपील!यआ�धकरण, च$डीगढ़/ DR, ITAT, Jodhpur 6. गाड'फाईल/ Guard File
आदेशानुसार/ By order सहायकपंजीकार/ Assistant Registrar