Smt. Surekha Agarwal,, Faizabad v. The Income Tax Officer,, Faizabad

ITA 9/LKW/2011 | 2004-2005
Pronouncement Date: 14-01-2011 | Result: Allowed

Appeal Details

RSA Number 923714 RSA 2011
Assessee PAN ACLPA2066R
Bench Lucknow
Appeal Number ITA 9/LKW/2011
Duration Of Justice 3 day(s)
Appellant Smt. Surekha Agarwal,, Faizabad
Respondent The Income Tax Officer,, Faizabad
Appeal Type Income Tax Appeal
Pronouncement Date 14-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 14-01-2011
Date Of Final Hearing 08-01-2013
Next Hearing Date 08-01-2013
Assessment Year 2004-2005
Appeal Filed On 11-01-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH LUCKNOW. BEFORE SHRI H.L.KARWA HON'BLE VICE PRESIDENT I.T.A.NO.9(LKW.)/2011 A.Y. :2004-05 SMT.SUREKHA AGARWAL VS. THE INCOME-TAX OFFICER- 1 C/O SAKET BAJAJ FAIZABAD. 1/13/204/2 STATION ROAD CIVIL LINES FAIZABAD. PAN ACLPA2066R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.P.MISHRA ADVOCATE RESPONDENT BY : SHRI P.K.BAJAJ D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A) I LUCKNOW DATED 14.9.2010 RELATING TO THE ASSESSMENT YEAR 2004- 05. 2. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLO WING GROUNDS : 1. THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACT S IN PASSING THE IMPUGNED APPELLATE ORDER DATED 14-09-10 WITHOUT ALL OWING THE APPELLANT AN OPPORTUNITY HAVE BEEN HEARD. 2. THAT THE LEARNED CIT (A) ERRED IN LAW AND ON FAC TS IN CONFIRMING THE ADDITION OF RS.50 000/- ON ACCOUNT O F GIFT WHICH WAS RECEIVED THROUGH CHEQUE FROM SHRI HANUMAN PD. T EKMANI AND DULY SOLEMNLY AFFIRMED BY THE DONOR WHOSE STATE MENT ON OATH WAS RECORDED BY THE ASSESSING OFFICER AS UNEXP LAINED DEPOSIT AND ADDING THE AMOUNT TO THE TOTAL INCOME O F THE ASSESSEE. 2 3. THAT THE LEARNED CIT (A) ERRED IN LAW AND ON FA CTS IN ARBITRARILY SUSTAINING THE ILLEGAL ADDITION OF RS.22 500/- AS I NTEREST RECEIVABLE @ 15% PRESUMED TO HAVE BEEN EARNED ON T HE FRIENDLY LOAN OF RS.1 50 000/- WHICH THE ASSESSEE HAS GIVEN FREE OF INTEREST TO SMT. SADHNA TIWARI. 4. THAT THE LEARNED CIT (A) ERRED IN LAW AND ON FAC TS IN ARBITRARILY CONFIRMING THE ADDITION OF RS.13 100/- IN RESPECT O F INADEQUATE WITHDRAWALS WITHOUT GIVING THE ASSESSEE-APPELLANT AN OPPORTUNITY TO PROVE THAT THE TOTAL WITHDRAWALS MAD E FOR HOUSE- HOLD EXPENSES BY FOUR MEMBERS OF THE FAMILY AMOUNTE D TO MORE THAN RS.1 00 000/- WHICH IS SUFFICIENT FOR THE FAM ILY HAVING 5 MEMBERS ( INCLUDING 2 YEAR OLD CHILD) ONLY AND LI VING IN ITS OWN RESIDENTIAL HOUSE. 5. THAT THE APPELLANT CRAVES PERMISSION FOR AMENDI NG THE AFORESAID GROUNDS OF APPEAL AND/ OR RAISING FRESH G ROUNDS OF APPEAL. 3. AT THE VERY OUTSET SHRI M.P.MISHRA ADVOCATE LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS PASSED TH E IMPUGNED ORDER EX PARTE. HE HAS NOT GIVEN AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDING TO THE LD. COUNSEL FOR THE ASSE SSEE IT AMOUNTS TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. HE T HEREFORE SUBMITTED THAT THE ORDER OF THE LD.CIT(A) MAY BE SET ASIDE AND THE I SSUES RAISED BY THE ASSESSEE BE RESTORED TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW. ON THE OTHE R HAND SHRI P.K.BAJAJ LD.D.R. STRONGLY OBJECTED TO THE ABOVE CONTENTION O F THE ASSESSEE. ACCORDING TO HIM THE LD.CIT(A) HAS ALREADY ALLOWED SEVERAL OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE AND THEREFORE NO RELIEF MAY BE GIVEN TO THE ASSESSEE AT THIS STAGE. 3 4. AFTER HEARING THE LD. REPRESENTATIVES OF BOTH T HE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD I AM OF THE CONS IDERED VIEW THAT THE LD.CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN MY OPINION THE LD.CIT(A) SHOULD HAVE DECIDED THE APPEAL OF THE ASSESSEE AFTER HEARING THE ASSESSEE OR HER COUNSEL . IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY AIR (19 79) ORISSA 69 THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPE AL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT . THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHO RITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY IT IS IMPERATIVE TO GIVE T HE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APP EAL. THUS CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE I THINK IT PR OPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HI S FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WI TH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. IN VIEW OF THE ABOVE I DO NOT THINK IT PROPER TO DECIDE THE APPEAL ON MERITS. 5. BEFORE PARTING WITH THIS CASE I DIRECT THE LD. CIT(A) TO DISPOSE THE APPEAL OF THE ASSESSEE PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF 4 RECEIPT OF THE ORDER. AT THE SAME TIME THE ASSESSE E IS ALSO DIRECTED TO CO- OPERATE WITH THE LD.CIT(A) IN THE APPELLATE PROCEE DINGS. 6. IN THE RESULT THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14 .1.2011. SD. (H.L.KARWA) VICE PRESIDENT JANUARY 14TH 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R. ITAT LUCKNOW. SRIVASTAVA.