Sh. Surinder Kumar, Ludhiana V. ITO, W-6(3), Ludhiana

ITA 1073/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0008 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 30-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDARSHAN JCIT DR
• Keywords: Opportunity of being heard
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' '# $, % &' BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M ITA NO. 1073/CHD/2019 ASSESSMENT YEAR : 2007-08 SHRI SURINDER KUMAR, HOUSE NO. 3895/4, MODEL HOUSE, LUDHIANA THE ITO WARD-6(3), LUDHIANA PAN NO: AJVPK2506P APPELLANT RESPONDENT !' ASSESSEE BY : SHRI PARIKSHIT AGGARWAL, C.A #!' REVENUE BY : SHRI ARVIND SUDARSHAN, JCIT DR $ %! & DATE OF HEARING : 18/06/2020 '()*! & DATE OF PRONOUNCEMENT : 18/06/2020 &(/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 12/06/2019 OF LD. CIT(A)-3 LUDHIANA. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE ASSESSMENT FRAMED BY THE LEARNED ASSESS ING OFFICER UNDER SECTION 147 R.W.S 144 OF THE INCOME TAX ACT, 1961 IS WITHOUT JU RISDICTION, WHEREAS NO NOTICE ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT, 196 1 WAS EVER SERVED UPON THE ASSESSEE. THEREFORE, ASSESSMENT FRAMED BY THE LEARN ED ASSESSING OFFICER AND ASSESSMENT ORDER SUSTAINED BY THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS)-3, LUDHIANA IS WITHOUT JURISDICTION AND I S ILLEGAL, UNCALLED FOR, UNWARRANTED, BAD IN THE EYES OF LAW AND NEEDS TO BE QUASHED. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-3, LUDHIANA HAS ERRED THE CONFIRMING THE ADDITION OF RS. 10,16,970/- MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF ADVANCES MADE BY THE ASSESSEE TO M/S EMSON TRADERS WITHOUT CONSIDERING THE FACTS OF THE CASE. THEREFOR E, ADDITION MADE BY THE LEARNED ASSESSING OFFICER FOR RS. 10,16,970/- AND CO NFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-3, LUDHIANA IS ILLEGAL, UNWARRANTED, UNCALLED FOR AND NEEDS TO BE DELETED. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPE ALS)-3, LUDHIANA HAS ERRED THE CONFIRMING THE ADDITION OF RS. 10,16,970/- MADE BY THE LEARNED ASSESSING 2 OFFICER ON ACCOUNT OF THE LEARNED ASSESSING OFFICER H AS MENTIONED IN ASSESSMENT ORDER THAT NO EVIDENCE WAS FURNISHED BY THE APPELLA NT IN RESPONSE TO SOURCE OF INVESTMENT I.E. ADVANCES MADE BY THE ASSESSEE TO M/ S EMSON TRADERS, WHEREAS ALL THE EVIDENCES WERE DULY FURNISHED BY THE ASSESS EE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, ADDITION MADE BY THE LEARNED ASSESSING OFFICER FOR RS. 10,16,970/- AND CONFIRMED BY THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS)-3, LUDHIANA IS ILLEGAL, UNWARRANTED, UNCALLED FOR AND NEEDS TO BE DELETED. 4. THAT THE APPELLANT CRAVES TO LEAVE OR TO AMEND T HE GROUND OF APPEALS BEFORE OR AT THE TIME OF HEARING. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE A.O. AS WELL AS THE LD. CIT(A) PASSED THEIR RESPECTIVE ORDERS EXPARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) FOLLOWED HIS EARLIER ORDER DT. 25/03/2019 IN THE CASE OF SMT. SHAMMI MALHOTRA WHICH WAS A SUBJECT MATT ER OF ASSESSEES APPEAL IN ITA NO. 701/CHD/2019 FOR THE A.Y. 2007-08 BEFORE THE ITAT , CHANDIGARH BENCH SMC, CHANDIGARH, WHEREIN THE CASE HAS BEEN DECIDED VIDE ORDER D T. 07/02/2020 AND THE MATTER IS RESTORED TO THE FILE OF THE A.O. 4. OUR ATTENTION WAS DRAWN TOWARDS PARA 5 OF THE IMPUGNE D ORDER WHEREIN THE LD. CIT(A) MENTIONED THAT THE FACTS OF THE PRESENT CASE WER E SIMILAR TO THE FACTS IN THE CASE OF SMT. SHAMMI MALHOTRA (SUPRA). HE THEREFORE REQUESTE D TO REMAND THIS CASE TO THE FILE OF THE A.O. AS HAS BEEN DONE IN THE AFORESAID REFERRED T O CASE OF SMT. SHAMMI MALHOTRA. 5. IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUPPORT ED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) BUT COULD NOT CONTROVERT THE AFORESAI D CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS INVOLVED IN THE CASE OF SMT. SHAMMI MALHOTRA(SUPRA) WHICH HAS BEEN DECIDED BY THE ITAT CHANDIGA RH BENCH SMC, CHANDIGARH IN ITA NO. 701/CHD/2019 FOR THE A.Y. 2007-08 V IDE ORDER DT. 07/02/2020 AND THE RELEVANT FINDINGS HAS BEEN MENTIONED IN PARA 10 WHICH REA D AS UNDER: 3 10. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT APPEARS THAT THE A.O. HAD NOT PROVIDED DUE AND REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE, THE ASSESSMENT ORDER DT. 27/12/2018 WAS PASSED BY H IM EXPARTE. THE A.O. SIMPLY STATED THAT THE NOTICE DT. 13/12/2018 WAS ISSUED TO THE ASSESSEE FOR HEARING ON 18/12/2018 WHICH WAS DULY SERVED THROUGH AFFIXTURE, HOWEVER NOWHERE IT WAS MENTIONED THAT AFFIXTURE WAS IN THE PRESENCE OF IND EPENDENT WITNESSES I.E. THE SERVICE WAS PROPER. IT IS ALSO NOTICED THAT THE LD. CIT(A) HAD NOT COMMENTED UPON THE SUBMISSIONS OF THE ASSESSEE THAT THE SOURC E OF INVESTMENTS MADE BY THE ASSESSEE WERE DULY FILED DURING THE COURSE OF ASSES SMENT PROCEEDINGS AND THE ASSESSEE WAS DOING THE BUSINESS OF RESALE OF COSMET IC GOODS, HOUSEHOLD GOODS AND WEARING APPARELS FROM LAST SO MANY YEARS. I THE REFORE BY CONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO SET A SIDE THIS CASE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO O RDER, THIS CASE IS REMANDED BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRES H IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. (ORDER PRONOUNCED ON 18/06/2020 ) SD/- SD/- '# $ .., (SANJAY GARG ) ( N.K. SAI NI) % &'/ JUDICIAL MEMBER / VICE PRESIDENT AG DATE: 18/06/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE