Smt. Gurinder Kaur, Ludhiana V. ITO, W-7(5), Ludhiana

ITA 1044/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3686 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M P DWIVEDI
• Assessee Lawyers: B M MONGA
• Keywords: Reassessment proceedings; Set aside
• Section: 143(2); 147; 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 1044/CHD/2018 / ASSESSMENT YEAR : 2010-11 SMT. GURINDER KAUR, W/O CAPTAIN KULJIT SINGH GREWAL, GREWAL NAGAR, VPO HAMBRAM, LUDHIANA 141001 VS. THE ITO, WARD-7(5), LUDHIANA ./PAN NO. BABPK4661D / APPELLANT /RESPONDENT ! /ASSESSEE BY : S/SHRI B.M MONGA & SHRI ROHIT KAURA ' ! / REVENUE BY : SH. M.P. DWIVEDI, JCIT # $ % /DATE OF HEARING : 05.11.2019 &'() % / DATE OF PRONOUNCEMENT : 05.11.2019 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 28.5.2018 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ORDER OF LD. CIT(A) IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT THE LD. CIT(A), HAS WRONGLY UPHELD THE ORD ERS OF THE AO PASSED U/S 144 R.W.S. 148 WITHOUT APPRECIATING T HE FACT THAT NO NOTICE U/S 148 WAS EVER SERVED ON THE ASSESSEE, THEREBY ITA NO. 1044-CHD-2018- SMT. GURINDER KAUR, LUDHIANA 2 MAKING THE WHOLE REASSESSMENT PROCEEDINGS AS NULL A ND VOID AND EVEN REASSESSMENT U/S 148 IS OTHERWISE BAD IN L AW. 3. THAT THE LD. CIT(A), HAS WRONGLY UPHELD THE ORDE RS OF THE AO WITHOUT APPRECIATING THE FACT THAT NO NOTICE U/S 143(2) WAS ISSUED AND/OR SERVED ON THE ASSESSEE, THEREFORE THE REASSESSMENT ORDER WAS PASSED WITHOUT PROPER ASSUMPTION OF LEGAL JURISDICTION. 4. THAT THE LD. CIT(A) IS NOT JUSTIFIED WHILE REJE CTING THE SUBMISSIONS/EVIDENCES OF THE ASSESSEE REGARDING EXP LANATION OF THE CASH DEPOSITS FROM SALE OF AGRICULTURAL LAND BY TREATING THE 'SALE DEED/AGREEMENT TO SELL' AS ADDITIONAL EVIDENC E NOT ADMISSIBLE IN ABSENCE OF APPLICATION UNDER RULE 46A . 5. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE A DDITION OF RS. 8,86,940/- WITHOUT APPRECIATING THE FACT THA T THE CASH DEPOSITS WAS OUT OF THE SALE CONSIDERATION OF AGRIC ULTURAL LAND OF RS. 7,26,500/-AND THE INCOME OF THE ASSESSEE WAS BE LOW TAXABLE LIMIT. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DI SPOSED OFF. 3. GROUND NO.1 : GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 4. GROUND NOS. 2 & 3: THESE GROUNDS ARE RELATING TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT U/S 147 READ WITH S ECTION 148 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, HAS STATED THAT AS PER THE INSTRUCTIONS OF HIS CLIENT, GROUND NOS. 2 &3 ARE NOT PRESSED. A NOTE TO THIS EFFECT HAS ALSO BEEN PUT BY THE LD. COUNSEL ON THE GROUNDS OF APPE AL ITSELF. IN VIEW OF THIS, GROUND NOS. 2 & 3 ARE DISMISSED A S NOT PRESSED. ITA NO. 1044-CHD-2018- SMT. GURINDER KAUR, LUDHIANA 3 5. GROUND NOS 4 TO 5: SO FAR AS THESE GROUNDS TAKEN UP IN THE APPEAL ARE CONCERNED, THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE LD. CIT(A) IN UPHOLDING THE ADDITION OF RS. 8,86,940/- INTO INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS INV ITED OUR ATTENTION TO THE IMPUGNED ASSESSMENT ORDER TO SUBMI T THAT THE SAME IS AN EX-PARTE ORDER. HE HAS SUBMITTED THAT THE ASSESSEE COULD NOT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS AS THE ASSESSEE WAS O UT OF INDIA. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASS ESSEE COULD HAVE EXPLAINED THE SOURCE OF THE AFORESAID DEPOSITS HAD THE ASSESSEE BEEN GIVEN PROPER OPPORTUNITY TO PRESENT HER CASE. THAT EVEN THE LD. CIT(A) HAS NOT ADMITTED THE EVIDENCES FURNISHED BY THE ASS ESSEE OF THE FACT THAT THE SOURCE OF THE DEPOSITS WAS OUT OF THE CONSIDERA TION RECEIVED FROM SALE OF LAND. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE MAY BE GIVEN AN O PPORTUNITY TO PRESENT HER CASE AND FURNISH THE NECESSARY DETAILS AND EVID ENCES. 6. THE LD. DR, ON THE OTHER HAND, HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. 7. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE LD. REPRESE NTATIVES OF THE PARTIES AND HAVE ALSO GONE THROUGH THE RECOR D. IN THIS CASE, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS AN EX-PARTE ORDER. THE ASSESSEE HAS DULY EXPLAINED THAT SHE WAS OUT OF INDIA AND, HENCE, COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. THAT EVEN THE NOTICES OF ITA NO. 1044-CHD-2018- SMT. GURINDER KAUR, LUDHIANA 4 THE ASSESSMENT PROCEEDINGS WERE NOT SERVED UPON THE ASSESSEE AS THE ASSESSEE WAS NOT PRESENT IN INDIA. IN VIEW OF THIS , THE ASSESSEE SOUGHT TO PRODUCE THE EVIDENCES BEFORE THE CIT(A) TO PROVE TH E SOURCE OF CASH DEPOSITS. HOWEVER, THE LD. CIT(A) REFUSED TO CONSID ER THE EVIDENCES FURNISHED BY THE ASSESSEE. SINCE, THE ASSESSMENT OR DER PASSED BY THE ASSESSING OFFICER IS AN EX-PARTE ORDER, HENCE, UND ER THE CIRCUMSTANCES, THE LD. CIT(A) WAS SUPPOSED TO CONSIDER THE DOCUMEN TS / EVIDENCES FURNISHED BY THE ASSESSEE AS THE POWERS OF THE LD. CIT(A) ARE CO- TERMINUS WITH THAT OF THE ASSESSING OFFICER. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER OF THE LD . CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADMIT THE EVIDENCES SOUGHT TO BE FURNISHED BY TH E ASSESSEE, CONSIDER THE SAME AND DECIDE THE ISSUE AFRESH BY WAY OF A SP EAKING ORDER. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WILL PROVIDE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT HER CASE. TH E ASSESSEE IS ALSO DIRECTED TO PROMPTLY APPEAR BEFORE THE ASSESSING OF FICER, AS AND WHEN CALLED FOR, AND NOT TO CONTRIBUTE IN ANY MANNER IN DELAYING THE PROCEEDINGS. THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED OF STATISTICAL PURPOSES ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT IMM EDIATELY ON COMPLETION OF HEARING. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER ITA NO. 1044-CHD-2018- SMT. GURINDER KAUR, LUDHIANA 5 DATED : 0511.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR ITA NO. 1044-CHD-2018- SMT. GURINDER KAUR, LUDHIANA 6