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Income Tax Appellate Tribunal, DELHI BENCH: ‘C’ NEW DELHI
Before: SHRI N.K. SAINI & SHRI K.N. CHARY
ORDER PER K. NARSIMHA CHARY, J.M. Assessee is an individual and filed his return of income for the AY 2011-12 on 22.01.2015 declaring a total income of Rs. 1,57,720/-. Ld. AO recorded that when the case was selected for scrutiny, notice u/s 143(2) of the Income Tax Act, 1961 (for short called as “the Act”) was issued on 10.09.2012 which was duly served, but since there was no compliance notice u/s 142(1) was issued and served. Again no compliance could be secured. Subsequent notices dated 06.09.2013, 25.10.2013 were issued. On 29.11.2013 assessee appeared in person and sought time. Subsequently on 30.12.2013 the assessee filed a 1 letter stating that the case of the assessee may be transferred to AO, Ward 22(2), New Delhi since the returns of income were being filed there. However, since the residential address of the assessee was within the jurisdiction of AO, Ward 2(3) the file was not transferred and the assessee never appeared thereafter. In those circumstances, AO completed assessment u/s 144 of the Act at a total income of Rs. 61,28,000/-. Appeal was preferred and was disposed of by way of impugned order, wherein the Ld.CIT (A) observed that the assessee has never appeared before him too to explain the reasons for delay in preferring the appeal and to prosecute the appeal on merits also. In the circumstances, Ld. CIT (A) also proceed ex parte and dismissed the appeal. Hence, this appeal by the assessee.
It is the argument of the Ld. AR that the absence of the assessee either before the AO or before the Ld. CIT (A) is not intentional. He submits that the assessee being a low paid employee of a private company has no knowledge at all of the Income tax proceedings and believing the words of his earlier counsel that the case was barred by jurisdiction, as such, there was no need to appear in this matter, the assessee absented himself. He submits that if an opportunity is given on humanitarian considerations, the assessee would get his tax liability determined by the AO. Per contra, Ld. DR submits that sufficient opportunity had already been given to the assessee and there are no merits in this appeal. 2
Having heard the arguments, we have perused the record. The assessee does not take shelter of any legal rights vested in him in this matter. His plea is that on filing the letter for transfer of the case from AO Ward No. 2(3) of Ghaziabad to AO 22(2) of New Delhi he was made to believe by his counsel that the proceedings are barred by jurisdiction, as such, there is no need to appear further in this matter.
Record does not reveal that any communication was sent to the assessee after rejecting his request for transfer. AO recorded that inasmuch as the permanent and present address of the assessee and the bank with which he holds his account fall within his jurisdiction, there was no need to transfer the matter. Since it is pleaded that the assessee is a low paid employee without any knowledge of the Act, Rules or procedures he failed to enquire and know the fate of his application, the matter ended up in assessment order u/s 144 of the Act and the appeal was also dismissed. Strictly speaking there does not appear to be any legal right in favour of the assessee. However, since all the endeavour of the procedure before the AO, CIT (A) and the Tribunal to reach the just tax liability of the assessee, we are of the considered opinion that the ends of justice would be met not by taking a strict rulistic view and to deny any opportunity to the assessee, but certainly by taking a lenient view to allow him a reasonable opportunity. Since the assessee does not stand to gain by suffering ex parte orders, the reason attributed by him for his absence before the authorities below cannot be brushed aside. With this view of the matter, we set aside the matter to the file of the AO to determine the tax liability of the assessee by giving an opportunity to him. It is made clear that it is the last opportunity to the assessee. We order accordingly.
In the result, the appeal of the assessee is allowed for statistical purposes.