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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’ NEW DELHI
Before: SHRI S. V. MEHROTRA & SHRI CHANDRA MOHAN GARG
ORDER PER CHANDRA MOHAN GARG, JM
This appeal has been filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-XXII, New Delhi dated 21/12/2012 passed in First Appeal No. 128/2010-11 for Assessment Year 2008-09. In this appeal, the assessee has raised as many as seven grounds but the primary legal contention of the assessee in Ground No. 1 is that the Ld.CIT (A) has not made any ground wise decision on the grounds raised by the assessee before the First Appellate Authority.
Therefore, the case should be restored to the file of the Ld.CIT (A). Therefore, we proceed to decide the Ground No. 1 of the assessee which reads as under:
1. That on the facts and in law and in the circumstances of the case, the Learned Commissioner of Income-tax (Appeals) has no decision in his order. The case should be restored to his file.
We have heard the arguments both the sides and carefully perused the material available on record before us. The Learned counsel of the assessee pointed out that the Assessing Officer completed the assessment u/s 144 of the Income-tax Act 1961 (for short the act) ex-parte without providing due opportunity of hearing to the assessee.
The Ld. Assessee’s Representative (AR) further submitted that during the First Appellate Proceedings the assessee has also not been afforded opportunity of being heard as the assessee has not received any notice of hearing from the First Appellate Authority. The Ld. AR elaborating the facts and circumstances wherein the assessee was denied opportunity of being heard, elaborated that the assessee was to demolish the old building situated at Plot No. 1582, Sector 15, Faridabad and due to some technical problem and she gave the contract to demolish the same to Mr. Yogendra Kundoriya on 3/1/2012 and shifted to the house in nearby area to House No. 1509, Sector 15, Faridabad to look after the construction activity which was carried on up to 31/3/2012. The Ld. AR further pointed out that during period stay of assessee at House No. 1509, Sector 15, Faridabad, the notices issued by the Ld.CIT (A) on 14/3/2012, 25/7/2012 & 14/12/2012 were not received and appeal of the assessee was dismissed ex-parte without adjudicating the grounds raised by the assessee before the Ld.CIT (A). The Ld. AR vehemently pointed out that the A.O also completed assessment u/s 144 of the Act, hence, the assessee was denied opportunity of being heard by the authorities below. Therefore, the case may kindly be restored to file of either A.O or the CIT (A) to meet ends of the justice as there was a clear violation of principle natural justice by the A.O and the Ld.CIT (A).
The Ld. Departmental Representative (DR) supported the action of the authorities below and submitted that when despite of several notice the assessee appellant did not appear during the assessment and appellate proceedings then the authorities below had no alternate but to decide the case ex-parte. Therefore, it cannot be alleged that the authorities below violated principles of natural justice. The Ld. DR strongly supported action of the A.O as well as Ld.CIT(A). However, he fairly submitted that the Department has no serious obligation if the case is restored to the file of the A.O for a fresh and denovo adjudication.
On careful consideration of above submission and careful perusal of the assessment and First Appellate Order, we observe that the proceedings before the authorities below have been completed ex-parte and the assessee has not provided due opportunity of hearing either by the A.O or by the Ld.CIT(A). The fact of temporarily shifting to nearby house supports the contention of the assessee that she did not receive the notices sent to her on previous address of House No, 1582, Sector 15, Faridabad. It is pertinent to mention that in Ground No. 2 raised before the Ld.CIT(A) the assessee specifically alleged ex-parte assessment order but the same has not been adjudicated by the Ld.CIT (A) and this fact is also apparent from the operative part Para 8.1 & 8.2 of the Impugned First Appellate Order.
From the order of the Ld.CIT (A) it is also vivid that the Ld.CIT (A) is only focused on the issuance of notice and its compliance and in Para 8.3 the Ld.CIT (A) dismissed the appeal of the assessee by holding that the assessee is not interested in prosecuting the appeal which is not a proper and justified approach for a quasi judicial First Appellate Authority. In view of above, we are of the considered view, that the assessee being a lady individual tax payer was denied opportunity of being heard by the authorities below and her case was not properly adjudicated neither at the assessment stage nor at the first appellate stage. Therefore, we find it just and proper to restore the case to the file of the A.O for fresh denovo adjudication. Hence, the case is resorted to the file of A.O with a direction that the A.O shall frame a fresh assessment after affording due opportunity of hearing of the assessee and without being prejudiced from the earlier assessment and First Appellate Order. We order accordingly. Ground No. 1 of the assessee is allowed in the manner as indicated above.
Since, by the earlier part of this order, we have restored the case to the file of A.O to the assessment stage. Therefore, other grounds of the assessee becomes academic and infructuous and we dismiss the same as having become infructuous.
In the result, the appeal of the assessee is allowed for statistical purpose.
The order is pronounced in the open court on 30th May 2015.