Dilbag Singh S/o Sh. Pyare Lal, Sonepat V. ITO, Sonepat

ITA 1014/DEL/2015

• Counselvise Citation: 101420114 RSA 2015
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARWINDER KAUR
• Assessee Lawyers: S S PARASHAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1014 /DEL/201 5 : ASSTT. YEAR : 2010 - 11 DILBAG SINGH, S/O SH. PYARE LAL, VILLAGE - NANGAL KHURD & POST - KUMASPUR, DISTRICT - SONIPAT , HAR YANA VS INCOME TAX OFFICER, WARD - 2 , SONIPAT , HARYANA (APPELLANT) (RESPONDENT) PAN NO. A XOPS0777P ASSESSEE BY : SH . S. S. PARASHAR, ADV. REVENUE BY : SM T. PARWINDER KAUR , SR. DR DATE OF HEARING : 20 .0 7 .2015 DATE OF PRONOUNCEMENT : 07 .08 .2015 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 08.12 .2014 OF LD. CIT (A), ROHTAK . 2 . THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF ADDITION OF RS. 9,15,562/ - MADE BY THE AO. 3 . FACTS OF THE C ASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 13.10.2010 DECLARING AN INCOME OF RS. 3,53,880/ - . THE AO HOWEVER FRAMED THE ASSESSMENT EX - PARTE AT AN INCOME OF RS.12,69,842/ - . THE AO WORKED OUT THE NET PROFIT OF THE ASSESSEE BY APPLYING TH E G.P RATE OF 12% ON THE TOTAL RECEIPT FROM CONTRACT SHOWN BY THE ASSESSEE AT RS. 1,12,62,103/ - . ITA NO.1014 /DEL /2015 DILBAG SINGH 2 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: THAT THE IMPUGNED ADDITION OF RS.9,15,962/ - IN THE INCOME OF THE APPELLANT IS NOT SUSTAINABLE IN LAW AND FACTS OF THE CASE BEING VIOLATIVE TO RULES OF NATURAL JUSTICE, EQUITY AND GOOD CONSCIENCE IN AS MUCH AS THE MATERIAL AND THE BASIS OF THE EX - PARTE BEST JUDGMENT OF ADDITION OF RS.9,15,962/ - WHICH WAS GATHERED AT THE BACK OF THE APPELLANT WAS NEITHER DISCLOSED NOR CONVEYED TO THE APPELLANT THROUGH PROPER NOTICE SO AS TO ENABLE THE APPELLANT TO REBUT AND REPUDIATE THE SAME IF HE CAN. RELIANCE IS MADE OF THE FOLLOWING JUDGMENT: (1) S. SANT SINGH VS THE ASSESSING AUTHORITY AMRITSAR, PUNJAB & HARYANA HIGH COURT PAGE 567 REPORTED IN STC VOLUME XXVIII 1971 (P&H) 567. (2) THE JOINT COMMISSIONER TAX OFFICER SHOWCARPET DIVISION AND ANOTHER REPORTED IN STC VOLUME XXVIII 1971 (MADRAS HIGH COURT) 683. (3) REPORTED IN 2013 VOLUME VIII SUPREME COURT CASES PAGE 20 (SC) HELD NOBODY SHOULD BE CONDEMNED UNHEARD AT BEFORE OVER BURDENING THE ASSESSEE WITH HUES AMOUNT OF TAX HE MUST BE HEARD AND MATERIAL GATHERED AT HIS BACK SHOULD BE DISCLOSED TO HIM THROUGH NOTICE OF REBUTTAL FAILING WHICH THE ASSES SMENT IS VOID AND LIABLE TO BE SET ASIDE. (4) KAPOOR WEAVING FACTORY VS STATE OF PUNJAB REPORTED IN STC VOLUME 46, 1980 (PUNJAB & HARYANA DB) PAGE 494. (5) DEBENDRA CH. DASS VS COMMERCIAL TAX OFFICER COOCH BIHAR & ORS. REPORTED IN SALE TAX CASE VOLUME 42, 1978 PAG E 458 (CALCUTTA HIGH COURT. HELD IF THE ASSESSING AUTHORITY IS OF THE OPINION THAT ASSESSEE IS WITH HOLDING HIS BOOKS OF ACCOUNTS AND IS NOT ITA NO.1014 /DEL /2015 DILBAG SINGH 3 COOPERATING IN MAKING THE ASSESSMENT JUDGMENT THEN AT LEAST THE ASSESSING OFFICER SHOULD PLACE, DISCLOSE AND CON VEY TO THE ASSESSEE THROUGH A NOTICE THE ENTIRE MATERIAL AND THE BASIS OF THE JUDGMENT AND ADDITIONS WHICH HE WANTS TO MAKE AGAINST THE ASSESSEE AND WHICH IS GATHERED AT THE BACK OF THE ASSESSEE SO AS TO ENABLE THE ASSESSEE TO REBUT AND REPUDIATE THE SAME . BUT THE MATERIAL AND BASIS OF IMPUGNED ADDITION OF RS.9,15,962/ - MADE IN THE INCOME OF THE APPELLANT BY EX - PARTE ORDER DATED 24.07.2012 AND GATHERED AT THE BACK OF THE APPELLANT NEITHER WAS DISCLOSED NOR CONVEYED TO THE APPELLANT BEFORE FRAMING THE EX - PA RTE JUDGMENT AND MAKING THE ADDITION OF RS.9,15,962/ - IN THE INCOME THE APPELLANT AGAINST HIM AND THUS THE SAME IS ILLEGAL, UNJUST AND ARBITRARY AND IS UNWARRANTED AND UNCALLED FOR, AND IS LIABLE TO BE DELETED AS REQUIRED BY LAW AND RULES OF NATURAL JUSTIC E, EQUITY AND GOOD CONSCIENCE. COPY OF THE JUDGMENTS ARE ENCLOSED HEREWITH FOR KIND PERUSAL AND READY REFERENCE TO THE HONORABLE COURT. THAT THE REPLY DATED 05.06.2014 TO YOUR OFFICE LETTER NO. CIT(A)/RTK/2014 - 15/28 DATED 30.05.2014 FURNISHED BY THE ITO WARD - 2, SONIPAT IS FULLY VAGUE AND IS IN VIOLATION OF YOUR HONOURS DIRECTIONS MADE IN THE SAID LETTER DATED 05.06.2014 FURTHER MORE THE REPLY REVEALS AND IT IS AMPLY CLEAR FROM THE CONTENTS OF THE REPLY THAT NEITHER ANY VALID NOTICE OF HEARING ISSUED NOR SAME WAS EVER VALIDLY SERVED UPON THE ASSESSEE. THUS NO EFFECTIVE AND VALID SERVICE OF ALLEGED NOTICE OF HEARING WAS EVER MADE ON THE APPELLANT/ASSESSEE. THAT IT IS FURTHER SUBMITTED THAT THERE IS NO FINDING NEITHER IN THE IMPUGNED ORDER NOR IN REPORT DAT ED 05.06.2014, NOR IN THE ORDER SHEET WHILE PASSING THE JIMINY ORDER HAS TO WHOM ALLEGED NOTICE OF HEARING SERVED UPON ON WHICH DATE AND WHEN SUCH ALLEGED NOTICES ISSUED. ITA NO.1014 /DEL /2015 DILBAG SINGH 4 THAT IT IS FURTHER SUBMITTED THAT ALL PROCEEDINGS OR ORDERS ON ORDER SHEET HAVE BEEN PASSED IN A DAY BUT PUTTING ILLEGALLY THE DIFFERENT DATES BY SAME PEN & INK. THUS THE IMPUGNED ORDER IS ILLEGAL, ARBITRARY AND MALAFIDE AND SAME IS LIABLE TO BE SET ASIDE ON THIS GROUND ALSO. IN VIEW OF THE ABOVE SUBMISSIONS IT IS MOST HUMBLY PRAYED THAT SINCE THE IMPUGNED EX - PARTE ORDER OF ASSESSMENT THEREBY MAKING ARBITRARY ADDITION OF RS.9,15,962/ - IS ARBITRARY, WRONG, UNJUST, ILLEGAL, VOID AND WITHOUT JURISDICTION, IN VIOLATION OF RULES OF NATURAL JUSTICE AND CONTRARY TO LAW, FACTS, REASON AND MATERIA L ON RECORD, THE SAME MAY KINDLY BE SET ASIDE AND THE ADDITION BE DELETED IN THE INTEREST OF JUSTICE AND EQUITY. 5 . THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE ASSESSEE MADE NO EFFORT TO COMPLY WITH THE NOTICES/LETT ERS ISSUED ON VARIOUS DATES. THEREFORE, THE ORDER PASSED BY THE AO U/S 144 OF THE ACT WAS CORRECT AND IT CANNOT BE SAID THAT THE JUSTICE HAD BEEN DENIED TO THE ASSESSEE. THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. 6. NOW THE ASSESSEE IS IN APPE AL. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMI SSIONS MADE BEFORE THE LD. CIT(A ) AND FURTHER SUBMITTED THAT THE AO HAD NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE LD. CIT(A) WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE SUSTAINED THE ADDITION MADE BY THE AO. HE REQUESTED FOR REMAND OF THE CASE TO THE AO. 7 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. ITA NO.1014 /DEL /2015 DILBAG SINGH 5 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AO PASSED EX - PARTE ORDER, THEREFORE, PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE TO DEFEND HIS CASE. THE LD. CIT(A) ALSO WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE CONFIRMED THE ADDITION MADE BY THE AO. IN MY OPINION , THIS CASE REQUIRES A FRESH ADJUDICATION AT THE LEVEL OF THE AO. THEREFORE, THE IMPUGNED ORDER IS SET ASIDE AND THE CASE IS REMANDED BACK TO THE FILE OF THE AO TO BE ADJUDICAT ED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 07 /08 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 07 /08 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR