2019 (3) TMI 558 - AT - Income Tax

Adjournment on various occasions - denial of natural justice - copies of the third party documents which were gathered and acted upon by the A.O while framing the assessment not given to assessee - HELD THAT - We find ourselves to be in agreement with her claim that her authorized representatives had remained under a bonafide belief that the hearing of the appeal was adjourned on the last occasion and a fresh notice would be issued by the CIT(A). Apart therefrom, the authorised representatives also held a conviction that pursuant to the request filed with the CIT(A), the various documents which were acted upon by the A.O for drawing of adverse inferences in the hands of the assessee would be made available. In our considered view in the backdrop of the aforesaid deposition of the assessee, it can safely be gathered that the adjournments on various occasions were not sought on flimsy grounds, but were backed by the reason that the copies of the third party documents which were gathered and acted upon by the A.O while framing the assessment, despite persistent requests by the assessee were not being made available by him. As observed by us hereinabove, we find that the assessee had also requested the CIT(A) for directing the A.O to supply the aforesaid documents as the same had a material bearing on the disposal of the appeal. We find that the reasons leading to seeking of adjournments by the assessee cannot be taken as a reflection of her lackadaisical approach that was adopted in the course of the appellate proceedings. We further find that as on 02.08.2018 the assessee had sought an adjournment and was informed by the office staff of the CIT(A)-37, Mumbai, that a fresh date of hearing will be issued. In the totality of the aforesaid facts, we are of the considered view that the adjournments sought by the assessee on different occasions before the CIT(A) could neither be held to be backed by flimsy grounds or unjustified. Assessee allowed for statistical purposes.

Issues Involved:
1. Validity of the reassessment proceedings under Sec. 147 of the IT Act.
2. Denial of proper opportunity of being heard.
3. Addition of Long Term Capital Gain (LTCG) as income.
4. Non-communication of reasons for issuing notice under Sec. 147.
5. Non-reply to objections against the notice under Sec. 147.
6. Violation of principles of natural justice.
7. Non-decision of the matter on merit by CIT(A).

Detailed Analysis:

1. Validity of the Reassessment Proceedings under Sec. 147 of the IT Act:
The assessee challenged the initiation of reassessment proceedings, arguing that it was done without proper application of mind and in violation of legal principles. The A.O had reopened the case based on information from the Investigation Directorate of Kolkata, which suggested that the assessee had taken accommodation entries in the form of LTCG by trading in penny stocks of Rutron International Ltd. The A.O concluded that the LTCG claimed by the assessee was a pre-arranged method to evade taxes, and thus added the amount to her total income under Sec. 68 of the IT Act.

2. Denial of Proper Opportunity of Being Heard:
The assessee contended that the CIT(A) did not provide a proper opportunity to be heard. The CIT(A) dismissed the appeal ex-parte, citing the assessee's repeated adjournments and lackadaisical approach. However, the assessee argued that adjournments were sought because crucial documents and statements relied upon by the A.O were not made available despite repeated requests. The Tribunal found merit in the assessee's claim, noting that the adjournments were justified and not sought on flimsy grounds.

3. Addition of Long Term Capital Gain (LTCG) as Income:
The A.O added the LTCG amount to the assessee's income, arguing that the transactions were bogus and aimed at routing unaccounted money. The assessee argued that the sale of shares was through a recognized stock exchange, with STT paid and sale proceeds received in the bank account. The Tribunal did not delve into the merits of this issue, as it restored the matter to the CIT(A) for fresh adjudication.

4. Non-communication of Reasons for Issuing Notice under Sec. 147:
The assessee argued that the CIT(A) erred in upholding the non-communication of reasons recorded in writing for issuing the notice under Sec. 147. The Tribunal acknowledged this issue but did not provide a detailed analysis, as it restored the matter for fresh adjudication.

5. Non-reply to Objections against the Notice under Sec. 147:
The assessee raised the issue of the A.O not replying to objections against the notice under Sec. 147 and finalizing the assessment without disposing of these objections. The Tribunal recognized this procedural lapse but did not provide a detailed analysis, as it restored the matter for fresh adjudication.

6. Violation of Principles of Natural Justice:
The assessee argued that the CIT(A) violated principles of natural justice by not offering cross-examination of parties, not granting inspection or copies of documents relied upon. The Tribunal found that the CIT(A) did not address the relevance of these documents and thus restored the matter for fresh adjudication, emphasizing the need for a fair hearing.

7. Non-decision of the Matter on Merit by CIT(A):
The assessee contended that the CIT(A) did not decide the matter on merit. The Tribunal agreed that the CIT(A) dismissed the appeal ex-parte without considering the merits, and thus restored the matter for fresh adjudication.

Conclusion:
The Tribunal allowed the appeals for statistical purposes, restoring the matters to the file of the CIT(A) for fresh adjudication after affording a reasonable opportunity of being heard to the assessee. The Tribunal emphasized that the CIT(A) should consider the merits of the case and address all procedural lapses raised by the assessee.

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