On the basis of personal indisposition principle of opportunity of being heard cannot be denied

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH: C: NEW DELHI

SHRI I. C. SUDHIR, JUDICIAL MEMBER

AND

SHRI A.N. PAHUJA, ACCOUNTANT MEMBER

ITA No. 3939/Del/2010

Assessment Year: 2006- 2007

Harvinder Kaur,

8678, Arkashan Road

Pahar Ganj,

New Delhi.

AJBPK2677F

(Appellant)

Vs.

ITO

Ward-39(4)

New Delhi.

 (Respondent)

Appellant by: Shri Sanat Kapoor, Advocate

Respondent by: Shri Satpal Singh, Sr. DR.

ORDER

PER I.C. SUDHIR, JUDICIAL MEMBER

Besides questioning additions sustained by the Ld. CIT(A), the assessee has also raised ground (ground No. 3) questioning the action of the Ld. CIT(A) in passing the order without affording any further opportunity to the assessee.

2. In support of ground No. 3 the Ld. AR submitted that the counsel of the assessee had been appearing before the Ld. CIT(A) to cooperate with the first appellate authority and only on 15.3.2010 the counsel of the assessee could not appear before the Ld. CIT(A) since the assessee could not inform her counsel about the date of hearing fixed on 15.3.2010 for filing reply to the remand report furnished by the AO. The Ld. AR pointed out that due to her personal indisposition the assessee could not inform her counsel about the date fixed. Ld. AR submitted that before the authorities below the assessee had filed submissions in detail alongwith a copy of her cash account and her bank account. A perusal of these accounts show that some of the deposits are out of withdrawals made earlier and are therefore explained. He pointed out that the

total amount of cash withdrawn and re-deposit is ` 8,37,300/-. Thus Ld. CIT(A) while passing order even in the absence of reply of the assessee should have allowed the relief of ` 8,37,300/- apart from allowing relief of ` 2,40,000/- received form her husband Shri B.P. Singh who is in defence service. The Ld. AR referred to page nos. 19 to 48 of the paper book filed on behalf of the assessee. These are copies of written submissions dated 23.10.2009, 11.11.2009 & 4.12.2009 filed before the Ld. CIT(A) and bank statement of the assessee. Ld. AR reiterated the submissions made before the authorities below against the additions sustained at ` 12,44,635/- made on behalf of unspent cash deposits in the saving bank account of the assessee and disallowance of the expenses incurred for running the trading business of the clothes. The Ld AR submitted that looking into the turnover of the assessee at ` 8,74,612/- the expenditure claimed at ` 43,892/- was very reasonable.

3. Ld. DR on the other hand relied upon the orders of the authorities below. He submitted further that there was no occasion and justification for donation of the gift of ` 6,50,000/- in cash to the assessee by her brother in law Shri Amar Pal Singh.

4. Considering the above submissions we find that before the Ld. CIT(A) the assessee had been cooperating in the proceedings. Submissions on her behalf were filed time to time in support of the appeal on which the Ld. CIT(A) was also pleased to call for the remand report of the AO. Lastly a copy of the remand report was sent to the assessee along with a notice u/s 250 dated 5.3.2010 fixing hearing on 15.3.2010. On 15.3.2010 there was no compliance and even an adjournment application was not filed on behalf of the assessee and accordingly the Ld. CIT(A) on the basis of material available on record before it has disposed off the appeal. The grievances of the assessee before us raised vide ground No. 3 remained that due to her personal indisposition the assessee could not inform her counsel about the date 15.3.2010 fixed before the Ld. CIT(A) for filing reply to the remand report. Though her counsel had appeared on all previous occasions before the Ld. CIT(A) started from October, 2009 and no hearing had been missed by him. We find no reason to doubt such explanation of the assessee for her non appearance on 15.3.2010 fixed before the Ld. CIT(A). Under these circumstances and to meet the end of justice we remand the matter to the file of the Ld. CIT(A) to afford opportunity to the assessee to file her reply to the remand report for which the date 15.3.2010 was fixed before the Ld. CIT(A) but the assessee could not appear and appeal was disposed off. After affording opportunity to the file her reply to the remand report and after affording opportunity of being heard to the parties Ld. CIT(A) is directed to dispose off the first appeal afresh as per the law. The grounds are thus allowed for statistical purposes.

5. Consequently appeal is allowed for statistical purposes.

Order pronounced in the open court on 19th October, 2012.

Sd/- Sd/-

(A.N. PAHUJA) ( I.C. SUDHIR)

ACCOUNTANT MEMBER JUDICIAL MEMBER

Date : 19.10.2012

*Veena

Copy of order forwarded to:

1. Appellant

2. Respondent

3. CIT(A)

4. CIT

5. DR

By Order

Deputy Registrar, ITAT