M/s Gagandeep Ice & Cold Storage Pvt. Ltd, Sirhind V. ITO, Ward Sirhind HQ, Mandi Gobindgarh

ITA 1079/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1465 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271D; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 1079/CHD/2018 / ASSESSMENT YEAR : 2008-09 M/S GANGADEEP ICE & COLD STORAGE PVT. LTD, SHAMSHER NAGAR, SIRHIND VS. THE ITO, WARD - SARHIND, HQ MANDI GOBINDGARH ./PAN NO: AACCG3240K / APPELLANT /RESPONDENT /ASSESSEE BY : SH JASPAL SHARMA, ADVOCATE ! / REVENUE BY : SH. ARVIND SUDERSHAN, SR.DR ' #$ /DATE OF HEARING : 06.06.2019 %&'($ / DATE OF PRONOUNCEMENT : 06. 06.2019 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 11.06.2018 OF THE COMMISSIONER OF INCOM E TAX(APPEALS)-1, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED ORDER IS BOTH AGAINST FACTS AND ERRONEOUS IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (APPEALS) HAS ERRED IN HAVING DISMISSED THE APPEAL EXPARTE WITHOUT HAVING SERVED ANY NOTICE OF ITA NO. 1079-CHD-2018- M/S GAGANDEEP ICE & COLD STORAGE PVT LTD., SIRHIND 2 HEARING BEFORE PASSING THE IMPUGNED ORDER ON 11.06.2018. 3. THE IMPUGNED ORDER IS AGAINST PRINCIPLE OF NATURAL JUSTICE AS LD. CIT(APPEALS) HAS ERRED IN HAVING NOT AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(APPEALS) HAS ERRED IN HAVING CONFIRMED THE ADDITION OF RS. 20 LACS MADE BY THE LD. ASSESSING OFFICER TREATING THE SAME AS UNEXPLAINED CASH CREDI T U/S 68 OF THE INCOME TAX ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) HAS ERRED IN HAVING CONFIRMED THE ACTI ON OF THE AO IN REFERRING THE MATTER TO THE ADDL. CIT FOR CONSIDERATION OF IMPOSITION OF PENALTY U/S 271D OF THE INCOME TAX ACT BY HOLDING THAT THE ASSESSEE COMPANY RECEIVED SHARE APPLICATION MONEY OF RS.20 LACS IN C ASH IN CONTRAVENTION OF PROVISIONS OF SECTION 269SS OF THE I.TAX ACT. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE IMPUGNED ORDER OF THE CIT(A) AND S UBMITTED THAT THE SAME IS AN EX-PARTE ORDER. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ABSENCE OF THE LD. COUNSEL FOR T HE ASSESSEE BEFORE THE LD. CIT(A) ON THE STIPULATED DATE OF HEARING WAS NO T INTENTIONAL, RATHER, WAS DUE TO THE FACT THAT THE ASSESSEE DID NOT RECEI VE THE NOTICE OF HEARING. THE LD. COUNSEL HAS SUBMITTED THAT THE ASS ESSEE HAS A FAIR CASE ON MERITS AND THAT THE ABSENCE OF THE LD. COUNSEL F OR THE ASSESSEE BEFORE THE CIT(A) WAS NOT INTENTIONAL. ITA NO. 1079-CHD-2018- M/S GAGANDEEP ICE & COLD STORAGE PVT LTD., SIRHIND 3 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE LD. CIT(A) HAS CATEGORICALLY NOTED IN THE IMPUGNED ORDER THAT THOUGH NOTICES WERE ISSUED BUT THERE WAS NON-COMPLIANCE ON THE PART OF THE ASSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTE DLY, THE ORDER OF THE CIT(A) IS AN EX-PARTE ORDER WHICH THE ASSESSEE WANTS TO CONTEST HIS CASE ON MERITS. THE PLEA OF THE ASSESSEE IS THAT TH E ASSESSEE DID NOT RECEIVE THE NOTICES OF HEARING ISSUED BY THE LD. CI T(A). THAT THERE WAS NO MENTION IN THE IMPUGNED ORDER THAT FOR WHICH DAT ES THE NOTICES WERE ISSUED AS THE ASSESSEE DID NOT RECEIVE ANY NOTICE E XCEPT THAT THE NOTICE FOR FIRST DATE OF HEARING FOR WHICH AN ADJOURNMENT APPLICATION WAS MOVED. 6. CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE V IEW, THAT THE INTEREST OF JUSTICE WILL BE WELL SERVED IF THE ASSE SSEE IS GIVEN AN OPPORTUNITY TO CONTEST THE APPEAL ON MERITS. THE A SSESSEE CAN BE BURDENED WITH SOME COSTS. I, ACCORDINGLY SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE CIT(A) FO R DECISION AFRESH SUBJECT TO DEPOSIT OF COSTS RS. 2,500/- IN THE PRI ME MINISTERS RELIEF FUND. 6. THE RECEIPT OF THE DEPOSIT OF THE SAID AMOUNT IN PRIME MINISTERS RELIEF FUND WILL BE SHOWN TO THE LD. CIT(A) ON THE FIRST DATE OF HEARING ITA NO. 1079-CHD-2018- M/S GAGANDEEP ICE & COLD STORAGE PVT LTD., SIRHIND 4 IN THE SET ASIDE PROCEEDINGS. NEEDLESS TO SAY THAT THE LD. CIT(A) WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND TO DECIDE THE SAME BY WAY OF SPEAKING ORDER IN ACCORDANCE WIT H LAW. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT IMM EDIATELY ON COMPLETION OF HEARING. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 06. 06.2019 .. &* +,-, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' . / CIT 4. ' . ( )/ THE CIT(A) 5. ,/0 1 , $1 , 23405 / DR, ITAT, CHANDIGARH 6. 046# / GUARD FILE &* ' / BY ORDER, 7! / ASSISTANT REGISTRAR