Presence of sufficient cause for non appearance cannot deserved the appeal dismissed and filling return with new address can be treated as intimation

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH: E: NEW DELHI

BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER

AND

SHRI K.G. BANSAL, ACCOUNTANT MEMBER

ITA No.4122/Del/2011

Assessment Year: 2005-06

Mrinalini Bhalla,

74, Hemkunt Colony,

New Delhi.

PAN: AHKPB3983A

(Appellant)

Vs.

ITO,

Ward- 23 (3),

New Delhi.

(Respondent)

Assessee by: Shri Amarjeet Singh, CA

Revenue by: Shri R.S. Negi, Sr.DR

ORDER

PER I.P. BANSAL, JUDICIAL MEMBER

This is an appeal filed by the assessee. It is directed against the order dated 9th December, 2010 passed by the CIT(A) for assessment year 2005-06. The grounds of appeal read as under:-

“1. That on the facts and circumstances of the case, the Learned Commissioner of Income-tax has erred in law while confirming disallowance of Commission of Rs.1,00,000/- paid by the assessee.

2. That on the facts and circumstances of the case, the Learned Commissioner of Income-tax has erred in law while confirming agricultural income of Rs.3,27,557/- as Income from Other Sources.

3. That the appellant prays for leave to add, alter, amend or vary from all or any of the grounds of appeal at or before the time of hearing of the appeal.”

2. Learned CIT (A) has dismissed the appeal filed by the assessee in limine on account of failure of the assessee to attend before him. The notices issued by learned CIT (A) to the assessee were returned back by the postal authorities with the remarks “left.” Therefore, learned CIT (A) has dismissed the appeal in limine following the decision of the Tribunal in the case of CIT vs. Multiplan (India) Pvt. Ltd. 38 ITD 320 (Del). It is the case of the assessee that the assessee was earlier residing at D-49, Saket, New Delhi from 1993 to 2000 and was also filing her returns regularly from the said address. The said property belonged to the brother of the assessee. The assessee had shifted her residence to Gurgaon during the year, 2001, however, the correspondence address remained the same. During the year 2009-10 the said property of Saket was sold by her brother and the assessee had changed the correspondence address from Saket, New Delhi to Hemkunt Colony, New Delhi and started filing her returns from the new address for and from Assessment Year 2009-10. As the new address was intimated by way of filing income-tax returns, the assessee, working under bona fide belief, did not inform the new address. The appeal was filed before the CIT (A) in the month of February, 2008 and the first hearing was fixed in the month of October, 2010 i.e., after more than 2 ½ years. In the mean time, the assessee had got her correspondence address changed. Therefore, the notices remained unattended. Thus, it is the case of the assessee that none of the notices having been served upon the assessee, the assessee has a reasonable and sufficient cause for non-appearance before the CIT (A). The assessee has also raised the following additional grounds vide letter dated 22nd March, 2012:-

“1. On the facts and circumstances of the case and in law, Ld. CIT (A) (Appeals)-XXIII, New Delhi erred in dismissing appellant’s appeal.

2. On the facts and circumstances of the case and in law, the appellant was prevented by reasonable cause in not attending the appellate proceedings before Ld. CIT (A) (Appeals)-XXIII, New Delhi.

3. On the facts and circumstances, Ld. CIT (A) (Appeals)-XXIII, New Delhi erred in deciding appellant’s appeal without discussing the merits of the case.

4. That the appellant prays for leave to add, alter, amend or vary from all or any of the grounds of appeal at or before the time of hearing of the appeal.”

3. All the facts mentioned above are supported by an affidavit filed by the assessee which is dated 21st March, 2012. It was submitted that the additional ground taken is a legal ground and, therefore, should be admitted.

4. On the other hand, the learned DR submitted that on the given address the notices were sent by CIT (A), therefore, learned CIT (A) was right in passing the ex parte order dismissing the appeal of the assessee.

5. We have heard both the parties and their contentions have carefully been considered. According to well established law, learned CIT (A) is required to dispose of the appeal on merits instead of dismissing the same in limine. We also found that the assessee, due to change of her correspondence address, was not actually served with the notices issued by the learned CIT (A). Therefore, keeping in view all these facts in mind, we are of the opinion that it will serve the interest of justice if the present appeal is restored back to the file of CIT (A) with a direction to dispose of the appeal filed by the assessee on merits after giving the assessee a reasonable opportunity of hearing. To ensure compliance, we direct the assessee to appear in person or through authorized representative before the CIT (A) on 30^th May, 2012 for which date notice is not required to be issued by learned CIT (A). Ld. Counsel of the assessee assured that the representation will be made before the CIT (A) on 30th May, 2012. In this manner, the appeal filed by the assessee was disposed of.

6. Since we have restored the issues raised in this appeal to the file of CIT (A), we do not express any opinion on merits as the same will be adjudicated by learned CIT (A) after giving the assessee a reasonable opportunity of hearing.

7. In the result, for statistical purposes the appeal filed by the assessee is treated as allowed.

The order pronounced in the open court on 22.03.2012.

                                                            Sd/-                                   Sd/-

                                                   [K.G. BANSAL]             [I.P. BANSAL]

                                       ACCOUNTANT MEMBER   JUDICIAL MEMBER

Dated: 22.03.2012.

dk

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

Deputy Registrar,

ITAT, Delhi Benches