Income Tax Appellate Tribunal - Bangalore
R. Sadulla , Bangalore vs Assessee on 30 January, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
BANGALORE BENCH "B"
BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND
SMT. P. MADHAVI DEVI, JUDICIAL MEMBER
I.T.A. No.482/Bang/2011
(Assessment Year : 200 7-08)
Mr. R. Sadulla,
No.26, II Main, I Stage, Service Road,
West of Chord Road, Manjunatha Nagar,
Bangalore-560 026 .... Appellant.
PAN AUPZS 6670 H
Vs.
Income Tax Officer,
Ward 5(3), Bangalore. ..... Respondent.
Appellant By : Mr.Rajendra Hegde.
Respondent By : Mrs. Susan Thomas Jose.
Date of Hearing : 30.1.2012.
Date of Pronouncement : 30.1.2012.
O R D E R
Per Shri N.K. Saini, A.M. :
This is an appeal by the assessee and is directed against the order dated 27.12.2010 of learned Commissioner of Income Tax (Appeals)-II, Bangalore.
2. The following grounds have been raised in this appeal :
" 1. The order of the learned CIT(A) -II, Bangalore is opposed to law, facts and circumstances of the case.
2. The order is passed in haste and without providing sufficient and reasonable opportunities of being heard.2 ITA No.482/Bang/11
3. The order is passed much against to the principle of natural justice and thus liable to be quashed.
4. The learned Assessing Officer ought to have assumed jurisdiction over the appellant, since the appellant was neither a Chartered Accountant, Medical Practitioner, nor an Advocate.
5. The learned CIT(A) ought not to have confirmed the disallowance of Rs.75,000 claimed by the appellant under section 80DD of the Act, merely because certificate was not enclosed.
6. The CIT(A) further erred in confirming the disallowance of Rs.25,000 being the deduction claimed under section 80GG of the Act, since there was no certificate.
7. The order of the CIT(A) is opposed to facts in confirming the addition of Rs.5,00,000 made under the provisions of 68 of the Act, when the appellant has not introduced any cash credits during the financial year relevant to the assessment year under reference.
8. The CIT(A) ought to have directed the Assessing Officer to allow the deduction of Rs.1,00,000 claimed under section 80G of the Act, since the appellant was not required to enclose any proof along with the return of income as per revised procedure and such proof has to be produced only when it is called for."
3. The main grievance of the assessee vide Ground No.2 relates to the action of the learned CIT(A) in deciding the appeal in haste and without providing sufficient and reasonable opportunity to the assessee.
4. The facts of the case in brief are that the assessee filed his return of income on 10.10.2007 declaring total income of Rs.2,44,675 being income from profession. The return was processed under section 143(1) of the Income Tax Act, 1961 (herein after referred as 'the Act'). Later on the case was selected for scrutiny. However, the assessment was framed ex-parte under section 144 of the Act on 31.12.2009 at an income of Rs.10,64,184. Against the said assessment order, the assessee preferred an appeal to 3 ITA No.482/Bang/11 the learned CIT(A) who dismissed the appeal for non-prosecution by observing in para 2 of the impugned order as under :
" In this case, the appeal was instituted on 29.1.2010 and thereafter a formal notice for hearing was issued on 9.8.2010 fixing the hearing on 24.8.2010. In response, the appellant's authorized representative vide letter dated 24.8.2010 sought adjournment. Subsequent opportunities were given on 16.8.2010, 28.10.2010, 9.11.2010 and on 27.12.2010. In spite of that, the appellant neither appeared in person nor through an authorized representative, even no written submissions were furnished. Under these circumstances, it is construed that, the appellant does not want to prosecute the appeal. Owing to non-prosecution, the appeal is dismissed following the decision of the Hon'ble ITAT, Delhi in the case of CIT Vs. Multiplan India Pvt. Ltd. (1991) 38 ITD 320 and of the Hon'ble High Court of Madhya Pradesh in the case of late Tukaji Rao Holkar Vs. CWT (1997) 225 ITR 480."
Now the assessee is in appeal.
5. The learned counsel for the assessee, at the very outset, stated that the learned CIT(A) was not justified in dismissing the appeal of the assessee in limine without deciding the various issues on merit. It was submitted that no notice of hearing was served on the assessee. Therefore, the learned CIT(A) was not justified in dismissing the appeal for non-prosecution.
6. In her rival submission, the learned Departmental Representative strongly supported the order of the learned CIT(A) and further submitted that various opportunities were given to the assessee for defending his case, however, the assessee did not appear in person nor through an authorized representative. Therefore, the learned CIT(A) was justified in dismissing the appeal on account of non-prosecution.
7. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, it is noticed that the Assessing 4 ITA No.482/Bang/11 Officer passed the assessment order ex-parte under section 144 of the Act. He has mentioned in the body of the assessment order dated 31.12.2009 that he received the file on transfer from ITO, Ward 8(3), Bangalore on 11.11.2009 and issued notice under section 142(1) of the Act which was served on the assessee on 18.11.2009. Again reminder was issued vide letter dt.27.11.2009 and served on the assessee on 2.12.2009 He also mentioned that a final opportunity of being heard along with a proposal for exparte assessment was accorded to the assessee vide letter dt.21.12.2009. The Assessing Officer has passed the assessment order under section 144 of the Act on 31.12.2009 and while passing the said order, it is mentioned that date fixed for hearing was intimated vide letter dt.21.12.2009. So, it is not clear as to whether the assessee was asked to appear on said date i.e. 31.12.2009 or some other date. It appears that the Assessing Officer passed the assessment order in haste without affording a due and reasonable opportunity of being heard and when the assessee carried the matter to the learned CIT(A), he also dismissed the appeal of the assessee for non-prosecution by stating that in para 2 of the impugned order that opportunities were given on 16.8.2010, 28.10.2010, 9.11.2010 and 27.12.2010. From the observation of the learned CIT(A), it is not clear as to whether notice for the last hearing was served on the assessee. It is also noticed that the learned CIT(A) had not discussed the issues agitated by the assessee on merits. In other words, the case has not been decided on merit. It is well settled that nobody should be condemned unheard. We, therefore, considering the totality of the facts and keeping in view the principles of natural justice, set aside the impugned order passed by the learned CIT(A) and remand the case back to the file of the Assessing Officer to be decided 5 ITA No.482/Bang/11 afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee and also direct the assessee to co-operate, not to seek unwarranted and unreasonable adjournment.
8. In the result, the appeal of assessee is allowed for statistical purposes.
(Order pronounced in the open court on 30th Jan., 2012.) Sd/- Sd/-
(P. MADHAVI DEVI) (N.K. SAINI)
Judicial Member Accountant Member
Bangalore,
Dated: 30.01.2012.
*Reddy gp
Copy to :
1. Appellant
2. Respondent
3. C.I.T.
4. CIT(A)
5. DR, -Bench.
6. Guard File.
(True copy) By Order
Asstt. Registrar, ITAT, Bangalore