SHRIMATI SUNIT KAUR W/O L/H SH. DALER SINGH,HOSHIARPUR vs. INCOME TAX OFFICER, DASUYA, DASUYA

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. No. 128/(Asr)/2018 Assessment Year: 2013-14

Sunit Kaur w. & L/H of Lt. Sh. Vs. Income Tax Officer, Daler Singh, H.No. 253, Ward Dasuya, Distt. Hoshiarpur No. 07, Arjuna Colony, Dasuya, Distt. Hoshiarpur [PAN: CUGPS 8314H] (Appellant) (Respondent)

Appellant by : Sh. J. K. Passi (Adv.) Respondent by: Sh. Charan Dass (D.R.) Date of Hearing: 11.05.2018 Date of Pronouncement: 15.05.2018

ORDER Per Sanjay Arora, AM: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-1, Jalandhar ('CIT(A)' for short) dated 04.01.2018, dismissing the assessee’s appeal contesting her assessment under section 143(3) of the Income-tax Act, 1961 ('the Act' hereinafter) dated 18.03.2016 for the Assessment Year (AY) 2013-14.

2 ITA No. 128/Asr/2018 (AY 2013-14) Sunit Kaur v. ITO of the assessee. Each of the notices of hearing received from the office of the first appellate authority, were duly forwarded by her, a widow representing her late husband u/s. 159 to her counsel, Sh. J.S. Bhasin, Advocate. For reasons unknown, however, he neither made any appearance nor filed any written submissions before the ld. CIT(A), apart from the solitary appearance on 19/01/2017, and which therefore explains the mention of his name in the cause title of the impugned order. His conduct should not however operate to prejudice the assessee. Further, placing on record a paper-book (PB) containing 64 pages, he would continue that though the ld. CIT(A) states of having decided the assessee’s appeal on merits, there is no reference in his order to any of the several documents furnished by the assessee during the assessment proceedings, now furnished as a part of the assessee’s PB. In fact, if only he had called for the assessment record, and referred those documents, his decision would surely be different. This, then, seriously impairs the adjudication by the ld. CIT(A) on merits, so that the appeal be restored back to his file, he concluded. The ld. Departmental Representative (DR) would, in reply, submit that the ld. CIT(A), though constrained for want of assistance from the assessee’s side, has nevertheless confirmed the assessment on merits. Surely, the ld. CIT(A) had no means to ascertain the reason/s for non-representation by or on behalf of the assessee. Further, the documents being now produced by the assessee by way of a paper-book, stated to be produced before the AO, stand therefore considered by him (AO). His order having been considered by the by the ld. CIT(A), the said documents must therefore also be regarded as having been considered by the ld. CIT(A). He was, however, on query, unable to show the said consideration by the ld. CIT(A) of these documents inasmuch as there is no reference thereto in his order. This is as, in that case, he would only be considered as having reappraised the facts, issuing independent finding/s, in which case, then, it was clarified, the tribunal was obliged to consider the assessee’s case on merits.

3 ITA No. 128/Asr/2018 (AY 2013-14) Sunit Kaur v. ITO 3. We are, in view of the fore-going, unable to hold that there has been, even though stated, any independent adjudication on merits by the ld. CIT(A). The ld. AR would assure us that in case of a set aside, there shall be proper assistance and cooperation from the assessee’s side in the proceedings before the ld. CIT(A). We, therefore, consider it fit and proper to, setting aside the impugned order, restore the proceedings to the file of the ld. CIT(A) for adjudication of the assessee’s appeal afresh on merits in accordance with law. Further, we think that the interest of justice shall be better served if he were to consult the assessment record. We may, before parting with our order, add, that we are conscious that the tribunal cannot set aside the impugned order for fresh adjudication unless it records a finding that there has been a denial of proper opportunity to the assessee by the Revenue, even as held by the Hon'ble jurisdictional High Court in CIT v. SAS Educational Society [2009] 319 ITR 65 (P&H). At the same time, however, it is only where there are independent findings by the first appellate authority, upon considering the material on record, that the doctrine of merger comes into play, making it incumbent on the tribunal, as the second appellate authority, to consider the finding/s of the AO, as modified by the first appellate authority, on merits, which we have found as absent in the instant case. In fact, the tribunal, usually in such cases of non-availment of opportunity by the assessee, for which no bona fide reasons are shown, to balance the interest of the both the sides, restores the matter for consideration on merits upon awarding cost to the assessee – a process which ensures proper consideration of his case and, thus, the cause of justice, while at the same time being penalized for being delinquent. This is of course where there has been no consideration on merits, as we have found in the instant case. However, we find no reason to levy any cost; the assessee having already suffered on account of non-response by her counsel – on whom an assessee invariably depends, before the first appellate authority.

4 ITA No. 128/Asr/2018 (AY 2013-14) Sunit Kaur v. ITO We decide accordingly.

Order pronounced in the open court on May 15, 2018

Sd/- Sd/- (N. K. Choudhry) (Sanjay Arora) Judicial Member Accountant Member Date: 15.05.2018 /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: Sunit Kaur W/o L/H Sh. Daler Singh, H.No. 253, Ward No. 07, Arjuna Colony, Dasuya, Distt. Hoshiarpur (2) The Respondent: Income Tax Officer, Dasuya, Distt. Hoshiarpur (3) The CIT(Appeals)-1, Jalandhar (4) The CIT concerned (5) The Sr. DR, I.T.A.T