Amrik Singh Bhullar, Sangrur V. ITO, Ward, Sangrur

ITA 1089/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5736 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-03-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MERE MAKING AVAILABLE OF
• Keywords: Rectification of order; Opportunity of being heard; Principle of natural justice; Revised return; Bonafide mistake; TDS; Set aside
• Section: 154; 234B; 143(1); 13; 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1089/CHD/2019 / ASSESSMENT YEAR : 2015-16 SHRI AMRIK SINGH BHULLAR, S/O SHRI MUKHTIAR SINGH, ST. NO. 2, MEHAL MUBARAK COLONY, SANGRUR. VS THE ITO, WARD, SANGRUR. ./ PAN NO: AHPPB9630D / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE (ADJOURNMENT APPLICATION OF SHRI SANKET SINGLA, ADVOCATE) # ! ' / REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT $ % ! &/ DATE OF HEARING : 04.03.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 29.04.2021 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 14.05.2019 OF CI T(A), PATIALA PERTAINING TO 2015-16 ASSESSMENT YEAR IS ASSAILED O N VARIOUS GROUNDS INCLUDING GROUND NO. 1, 2 AND 7 WHICH READ AS UNDER : 1. THAT THE ORDER OF THE WORTHY CIT(A) IN SO FAR IS AG AINST THE APPELLANT, IS BAD IN LAW AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE , PRINCIPLES OF NATURAL JUSTICE, EQUITY AND ALL OTHER KNOWN PRINCIPLES OF LAW. 2. THAT THE WORTHY CIT(A) IS NOT JUSTIFIED IN REJECTIN G THE RECTIFICATION APPLICATION FILED BY THE APPELLANT THAT THE SAME IS NOT A MISTA KE APPARENT FROM THE RECORD. 3. XXX 4. XXX 5. XXX ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 2 OF 16 6. XXX 7. THAT THE WORTHY A.O HAS FAILED TO APPRECIATE THE FA CTS THAT THE ORDER PASSED BY THE WORTHY ASSESSING OFFICER, SANGRUR IS BARRED BY LIMITATION AS THE APPELLANT FILED AN APPLICATION FOR RECTIFICATION ON 01-12-2017 THRO UGH E-PORTAL WHICH WAS TRANSFERRED TO THE CONCERNED A.O. ON 05-12-2017 WHI CH WAS TO BE DECIDED WITHIN SIX MONTHS AS PER SECTION 154(8) BUT THE ORDER WAS PASSED ON 09-11-2018 I.E. AFTER EXPIRY OF 6 MONTHS. 2. BY THE REMAINING GROUNDS, THE ASSESSEE ASSAILS T HE ISSUE ON MERITS. 3. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATI ON WAS MOVED ON BEHALF OF THE ASSESSEE. NONE WAS PRESENT IN SUPPORT THEREOF. HOWEVER, CONSIDERING THE RECORD, THE LD. SR.DR ADDRESSING THE AFORESAID GROUNDS WAS REQUIRED TO PO INT OUT FROM THE ORDER WHETHER THE ASSESSEE CAN BE SAID TO HAVE BEEN HEARD BEFORE THE PASSING OF THE ORDER AS VIOLATION OF PRI NCIPLES OF NATURAL JUSTICE HAVE BEEN PLEADED BY THE ASSESSEE-A PPELLANT. 4. THE LD. SR.DR REFERRED TO WRITTEN SUBMISSIONS OF THE ASSESSEE EXTRACTED IN PARA 4.5 OF THE IMPUGNED ORDE R. REFERRING TO THESE, IT WAS SUBMITTED THAT THE ASSESSEE APPEAR S TO HAVE BEEN HEARD AS SUBMISSIONS EXTRACTED CAN BE SAID TO HAVE BEEN CONSIDERED AS POSSIBLY THAT WAS THE ONLY ARGUMENT O F THE ASSESSEE. ACCORDINGLY, IT WAS HER SUBMISSION THAT THE ASSESSEE FOR ALL INTENTS AND PURPOSES CAN BE SAID TO HAVE BE EN HEARD. 5. A PERUSAL OF THE RECORD SHOWS THAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE RETURNED AN INCOME OF RS. 1,24,800/- FROM THE BUSINESS AND PROFESSION AND IN THE YEAR UNDER CONSIDERATION DECLARED A TOTAL INCOME OF RS. 18,91, 963/- AFTER ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 3 OF 16 DEDUCTIONS UNDER CHAPTER VI-A. TOTAL TAX AND INTER EST OF RS. 3,83,065/- WAS PAID. THE SAID RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT,10961 ON 09.05.2017 AND REGUL AR DEMAND OF RS. 3,45,500/- WAS RAISED AFTER CHARGING OF INTE REST U/S 234A, 234B AND 234C AS DUE DATE FOR FILING OF RETURN FOR THE YEAR UNDER CONSIDERATION WAS 07.09.2015. THEREAFTER, THE ASSE SSEE FILED AN APPLICATION U/S 154 SEEKING RECTIFICATION STATING T HAT IN THE FINANCIAL YEAR, THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS. 27,73,603/- ( INCLUDING INTEREST AMOUNT OF RS. 3,14 ,385/-) ON ACCOUNT OF COMPULSORY ACQUISITION OF LAND BY THE GO VERNMENT. A PRAYER FOR RECTIFICATION WAS MADE RELYING UPON CIRC ULAR ISSUED BY CBDT TO PUT IN ASSESSEE'S WORDS, IT WAS SUBMITTED : THE CIRCULAR OF CBDT ALONG WITH ORIGINAL ITR AND COMPUTATION FOR THE A.Y . 2015-16 AS WELL AS RECTIFIED COMPUTATION OF INCOME AND PROOF OF PAYMENT FOR COMPENSATION MAD E BY THE DISTRICT MAGISTRATE (SDM)-CUM- LAND ACQUISITION COLLECTOR, SANGRUR FOR CONSIDERATI ON AND NECESSARY ACTION. THE SPECIFIC COMPENSATION RECEIVED BY THE ASSESSEE AS AVAILABLE IN THE ORDER PASSED U/S 154 OF THE ACT WAS SHOWN TO BE AS UNDER : DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD RECEI VED COMPENSATION FOR COMPULSORY ACQUISITION OF HIS AGRICULTURE AND COMMERCIAL LAND AS UNDER:- SR. NO . CERTIFICATE'S NO. & DATE NATURE OF LAND DATE OF RECEIPT OF COMPENSATION TOTAL COMPENSATION (RS.) TDS DEDUCTED (RS.) NET COMPENSATION RECEIVED (RS.) 1. 401 09.02.2016 AGRICULTURE 10.02.2015 4,21,173/- 2,68,676/- 2. 401 09.02.2016 COMMERCIAL 10.02.2015 21,07,686/- 2,44,744/- 2,10,769/- 24,474/- 18,96,917/- 2,20,270/- NOTE:- AS PER CERTIFICATE FROM THE O/O THE COLLECTOR LAND AQQUISITION-CUM-S.D.M. SANGRUR, THE SAID AGRICULTURE AND COMMERTIAL LAND HAD BEEN ACQUIRED BY THE LAND A CQUISITION OFFICER FOR ROAD NO.NH-64 AND VIDE THE NOTIFICATION NO.S.O.42/C.A.2/1899/S.9/ 2/2008 DATED 09.02.2008 OF THE PUNJAB GOVT., THE AMOUNT EQUILENT TO THIS AWARD OF CO MPENSATION FOR PURCHASE OF LAND WILL BE EXEMPTED FROM STAMP DUTY AND REGISTRATION CHARGES. ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 4 OF 16 5.1 ACCORDINGLY, THE FOLLOWING RECTIFICATION IN THE ORDER VIS--VIS THE ORIGINAL COMPUTATION WAS PRAYED FOR : SR. NO. PARTICULARS ORIGINAL ITR & COMPUTATION RECTIFIED COMPUTATION 1. ASSESSMENT YEAR 2015 - 16 2015 - 16 2. ORIGINAL (FILED ON 23-03-2017) NO REVISED RETURN FILED BY THE ASSESSEE. 3. INCOME FROM BUSINESS AND PROFESSION RS. 1,24,800/ - RS. 1,24,800/ - 4. INCOME FROM CAPITAL GAIN LTCG RS.18,91,963/- - 5. INCOME FROM OTHER SOURCES RS.1,81,488/ - RS.7,415/ - 6. GROSS TOTAL INCOME RS.20,16,763/ - RS. 1,32,220/ - 7. DEDUCTIONS(CHAPTER VL - A) RS. 1,24,800/ - - 8. NET TOTAL INCOME RS.18,91,963/- RS. 1,32,220/ - 5.2 HOWEVER, THE SAID REQUEST AND PRAYER DID NOT FI ND FAVOUR WITH THE AO WHO HELD THAT THE ASSESSEE INTENDS HIS CASE TO BE DECIDED AS PER THE PARTICULARS WHICH WERE NOT SHOWN IN THE RETURN OF INCOME. 6. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WHERE THE WRITTEN SUBMISSIONS E XTRACTED IN THE ORDER ALSO DID NOT FIND FAVOUR WITH THE FIRST A PPELLATE AUTHORITY. 7. IN THE SAID BACKGROUND, THE ASSESSEE HAS INVOKED THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY. 7.1. THE RECORD HAS BEEN CONSIDERED. SINCE THE GRI EVANCE APPEARED MAINTAINABLE, ACCORDINGLY, REJECTING THE A DJOURNMENT APPLICATION, THE LD. SR.DR WAS HEARD. THE APPEAL, A CCORDINGLY IS ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 5 OF 16 BEING DECIDED EX-PARTE QUA THE ASSESSEE APPELLANT O N MERITS WHEREIN THE LD. DR RELIED ON THE ORDER. 8. FOR THE SAKE OF COMPLETENESS, IT NEED BE NOTED T HAT IN THE APPEAL, THE ASSESSEE FURTHER CHALLENGED THE ORDER P ASSED U/S 154 ON MERITS AS WELL AS ON THE MAINTAINABILITY OF THE ORDER ITSELF. THE ORDER PASSED WAS ALSO ASSAILED ON THE GROUNDS O F LIMITATION AND CONSEQUENT JURISDICTION. 9. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE JURISDICTIONAL CHALLENGE WHEREIN SUBMISSIONS OF THE ASSESSEE HAVE BEEN EXTRACTED HAS BEEN ADDRESSED IN PARAS 3 T O 4 AT PAGES 1 TO 6 OF THE ORDER AND REJECTION OF THE SAME ARE SET OUT IN PARA 5 AT PAGE 6 AND 7. THEREAFTER, THE DEC ISION ON MERITS HAS BEEN TAKEN. THE DISCUSSION ON MERITS IS BEING REFRAINED FROM AS IT WOULD COME INTO PLAY ONLY IF T HE DECISION ON JURISDICTION IS UPHELD. THE RELEVANT FINDING OF THE AO IS REPRODUCED HEREUNDER : 3. FURTHER, PERUSAL OF THE RECTIFICATION APPLICA TION FILED U/S 154 SHOWS THAT IT HAS NOT -I SIGNED BY THE ASSESSEE BUT BY SH. PARVEEN BANSAL, A DVOCATE. SECTION 154(2)(B) OF INCOME TAX ACT, 1961 PROVIDES THAT THE AUTHORITY CONCERNED SHALL MAKE SUCH AMENDMENT FOR RECTIFYING ANY SUCH MISTAKE WHICH HAS BEEN BROUGHT TO ITS NOTICE 'BY THE ASSESSEE '. IN THE PRESENT CASE, THE ASSESSEE HIMSELF HAS NOT BROUGHT ANY MISTAKE TO THE NOTICE OF THE ASSESSING OFFICER. A REPRESENTATIVE CAN REPRESENT T HE ASSESSEE BUT HE CANNOT SUBSTITUTE THE ASSESSEE FOR ALL INTENT AND PURPOSE. SINCE, IT IS A N ADMITTED FACT THAT THE ASSESSEE HIMSELF HAS NOT FILED A RECTIFICATION APPLICATION U/S 154, RECTIFICATION APPLICATION FILED BY SH. PARVEEN BANSAL, ADVOCATE OR THE REPRESENTATIVE OF T HE ASSESSEE IN THE PRESENT EASE IS INCOMPETENT AND THEREFORE NON-EST IN THE EYES OF LA W. THE SAID RECTIFICATION APPLICATION FILED U/S 154 IS LIABLE TO BE REJECTED FOR THIS REA SON ALSO. (SUPPORT TAKEN FROM THE CASE LAW: (SMT. JANGIR KAUR , AMBALA CITY VS ASSESSEE IN THE INCOME TAX APPELLATE TRIBUNAL: 'A' BENCH: CHANDIGAR H BEFORE SHRI H.L.KARWA, VP AND SHRI D.K. SRIVASTAVA, AM IN IT A NO. 908/ CHD/2011, ASSESSMENT YEAR 2007-08 DATED 26- 12-2011.) ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 6 OF 16 9.1 ON A CONSIDERATION OF THE RECORD AND IN THE LIG HT OF THE AFOREMENTIONED GROUNDS WHICH HAVE BEEN EXTRACTED, I T IS EVIDENT THAT THE ASSESSEE HAD CHALLENGED THE ORDER PASSED UPHOLDING THE JURISDICTION OF THE AO DESPITE THE AL LEGED VIOLATION OF THE STATUTORY TIME LINE ETC. IN THE FA CTS OF THE PRESENT CASE, IT CAN BE SEEN THAT THE ORDER PASSED U/S 154 WAS TO BE PASSED ON OR BEFORE 30.06.2018 AND AS PER RECORD, HAS BEEN PASSED ON 09.11.2019. THE RELEVANT FACTS AVAILABLE ON RECORD IN REGARD THERETO ARE THAT THE RECTIFICAT ION APPLICATION WAS FILED ON 01.12.2017 THROUGH E-PORTA L. THIS WAS TRANSFERRED TO THE CONCERNED AO ON 05.12.2017 A ND THE ORDER WAS PASSED BY THE AO ON 09.11.2018 I.E. AFTER THE EXPIRY OF SIX MONTHS. THE RELEVANT PROVISION SETTI NG DOWN THE LIMITATION OF 6 MONTHS UNDER WHOSE SHELTER THE CHALLENGE IS POSED IS SUB-SECTION (8) OF SECTION 154 WHICH MA NDATED THAT THE AO WAS BOUND TO PASS AN ORDER WITHIN SIX M ONTHS FROM THE END OF THE MONTH, DATE ON WHICH THE APPLIC ATION IS RECEIVED BY THE AO. THE PROVISION UNDER DISCUSSION IS REPRODUCED FOR THE SAKE OF COMPLETENESS : 154(8) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB -SECTION (7), WHERE AN APPLICATION FOR AMENDMENT UNDER THIS SECTION IS MADE BY THE ASSESSE E 30 [OR BY THE DEDUCTOR] ON OR AFTER THE 1ST DAY OF JUNE, 2001 TO AN INCOME-TAX AUTHORIT Y REFERRED TO IN SUB-SECTION (1), THE AUTHORITY SHALL PASS AN ORDER, WITHIN A PERIOD OF S IX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATION IS RECEIVED BY IT, (A) MAKING THE AMENDMENT; OR (B) REFUSING TO ALLOW THE CLAIM.] ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 7 OF 16 9.2. INSTRUCTION 01/2016 ISSUED BY THE CBDT CLARIFYING/AMPLIFYING THE PROVISIONS HAD ALSO BEEN RELIED UPON WHICH AS PER SUBMISSION RECORDED IN THE IMPUGN ED ORDER WERE CLARIFIED AS UNDER: 'SUB-SECTION (8) OF SECTION 154 OF THE INCOME-TAX A CT, 1961 (ACT) STIPULATES THAT WHERE AN APPLICATION FOR AMENDMENT IS MADE BY ASSESSEE/DE DUCTOR/COLLECTOR WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD, THE INCOM E-TAX AUTHORITY CONCERNED SHALL PASS AN ORDER, WITHIN A PERIOD OF SIX MONTHS FROM T HE END OF THE MONTH IN WHICH SUCH AN APPLICATION IS RECEIVED, BY EITHER MAKING THE AM ENDMENT OR REFUSING TO ALLOW THE CLAIM. IT HAS BEEN BROUGHT TO THE NOTICE OF THE BOA RD THAT THE SAID TIME-LIMIT OF SIX MONTHS HAS NOT BEEN OBSERVED IN DECIDING SOME APPLI CATIONS. IN SUCH CASES, THE FIELD AUTHORITIES OFTEN TAKE A VIEW THAT SINCE NO ACTION WAS TAKEN WITHIN THE PRESCRIBED TIME- FRAME, THE APPLICATION OF THE TAXPAYER IS DEEMED TO HAVE LAPSED, THEREBY NOT REQUIRING ANY ACTION. 2. THE MATTER HAS BEEN EXAMINED BY THE BOARD. IN TH IS REGARD, THE UNDERSIGNED IS DIRECTED TO CONVEY THAT THE AFORESAID TIME-LIMIT OF SIX MONTHS IS TO BE STRICTLY FOLLOWED BY THE ASSESSING OFFICER WHILE DISPOSING APPLICATIO NS FILED BY THE ASSESSEE/DEDUCTOR/COLLECTOR UNDER SECTION 154 OF TH E ACT. THE SUPERVISORY OFFICERS SHOULD MONITOR THE ADHERENCE OF PRESCRIBED TIME LIM IT AND SUITABLE ADMINISTRATIVE ACTION MAY BE INITIATED IN CASES WHERE FAILURE TO A DHERE TO THE PRESCRIBED TIME FRAME IS NOTICED. ' 9.3. IN THE RECTIFICATION APPLICATION, IT HAD BEEN STATED THAT THE ASSESSEE HAD BY MISTAKE INCLUDED THE AMOUNT REC EIVED IN ITS COMPUTATION OF TAXABLE INCOME IN IGNORANCE OF T HE FACT THAT IT WAS A NON TAXABLE EVENT. IT WAS CLAIMED TH AT HE HAD ALSO WRONGLY PAID TAX THEREON. FOR SUPPORTING THE ARGUMENT THAT THE AMOUNT WAS NOT TAXABLE ON WHICH TAX HAD BE EN PAID INADVERTENTLY RELIANCE WAS PLACED ON CBDT CIRCULAR NO. 36/2016 DATED 25.10.2016 WHICH ACCORDING TO THE ASS ESSEE EXTENDED THE EXEMPTION BY INCLUDING COMPULSORILY AC QUIRED LAND WITHOUT ANY RESTRICTION ON AREA AS WELL AS CLA SSIFICATION OF LAND. THE CLAIM HAD BEEN MADE UNDER THE RIGHT T O FAIR ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 8 OF 16 COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, RE- HABILITATION AND RE-SETTLEMENT ACT 2013 (RFCTLARR) WHICH, IT WAS CLAIMED WAS MADE APPLICABLE FROM JANUARY, 20 14. THE ASSESSEE CLAIMED TO HAVE INADVERTENTLY BY MISTA KE TREATED THE AMOUNTS SO RECEIVED AS A TAXABLE EVENT AND SOUGHT RECTIFICATION. 9.4 IN THE SAID BACKGROUND CHALLENGE IS POSED ON TH E GROUNDS THAT THE RECTIFICATION ORDER WRONGLY TREATE D THE APPLICATION AS NOT MAINTAINABLE ON THE GROUND THAT IT WAS FILED BY THE COUNSEL WHEREAS IT HAD BEEN FILED BY T HE ASSESSEE. THE ASSESSEE IN THE DETAILED NOTE EXTRACT ED IN PAGES 3 TO 6 HAS PUT FORTH THE CLAIM THAT THE MISTA KE WAS BROUGHT TO THE NOTICE OF THE AO ON THE INSTRUCTION OF THE ASSESSEE BY THE COUNSEL WHO ONLY ACTED AFTER THE RE CTIFICATION APPLICATION U/S 154 WAS FILED ELECTRONICALLY BY THE ASSESSEE. IT HAS BEEN ASSAILED THAT A.O. CAN'T REJECT THE CLAIM SIMPLY BECAUSE THE APPELLANT HAD SHOWN IT TAXABLE IN THE RETURN OF INCO ME AND THERE IS NO ESTOPPEL AGAINST THE ASSESSEE TO CLAIM EXEMPTION . 9.5 THE ASSESSEE HAS FURTHER ASSAILED THE ACTION RELYIN G UPON ARTICLE 265 OF THE CONSTITUTION OF INDIA PLEADING T HAT TAX CAN BE LEVIED ONLY UNDER THE EXPRESS PROVISION OF LAW A ND NOT ON ACCOUNT OF IGNORANCE OR MISTAKE OF THE ASSESSEE. 9.6 SIMILARLY CHALLENGE IS ALSO POSED ON THE GROUND THAT THE AO IS NOT JUSTIFIED TO DISMISS ASSESSEE'S CLAIM HOL DING THAT THE ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 9 OF 16 APPELLANT WANTS TO MAKE A FRESH CLAIM ON THE BASIS OF FRESH MATERIAL AS THE A.O. HAS FAILED TO MAKE DISTINCTION BETWEEN A FRESH CLAIM AN D REVISED CLAIM. IT HAS BEEN ARGUED THAT NO FRESH CLAIM ON THE BASIS OF ANY FRES H MATERIAL HAS BEEN MADE. THE CLAIM IS MADE ON THE GROUNDS THAT THE TAX HAS BEEN PAID ON THE BASIS OF WRONG INTERPRETAT IONS OF THE PROVISIONS OF THE LAW. 9.7 CONSIDERING THESE ARGUMENTS, THE CIT(A) CAME TO THE FOLLOWING CONCLUSION : 05 . GROUND OF APPEAL NO. 1 & 2 : IN DISPOSING OF THE RECTIFICATION APPLICATION, THE LD. AR MENTIONS THAT THE RECTIFICATION APPLICATION HAS BEEN FILED BY THE COU NSEL TO THE APPELLANT IN HIS OWN SIGNATURE AND WITHOUT VAKALATN AMA ON 14.05.2018 WHILE THE APPELLANT IN THE ABOVE GROUNDS OF APPEAL ARGUES THAT THE APPELLANT HIMSELF HAD THROUGH HIS O WN USER NAME AND PASSWORD HAD ACTUALLY FILED AN APPLICATION FOR RECTIFICATION ON 01-12-2017 THROUGH E-FILING PORTAL VIDE ACKNOWLE DGMENT NO. 322201290011217 WHICH WAS TRANSFERRED TO THE A.O. O N 05-12- 2017 AND WHICH WAS TO BE DECIDED WITHIN SIX MONTHS AS PER SECTION 154(8) BUT THE ORDER WAS PASSED ON 09-11-20 18. AS PER THE CENTRAL BOARD OF DIRECT TAXES' INSTRUCTION NO. 3 /2 013 DATED 05-07-2013 (VIDE F.NO. 225/76/2013/UA.II):- THERE IS FACILITY TO FILE THE APPLICATION MEANT FOR RECTIFICATION OF MISTAKE EITHER (A )TO SUBMIT ONLINE, OR (B) TO SUBMIT BY POST OR IN PERSON. IF THE APPLICATIONS U/S 154 IS SUBMITTED BY POST OR IN PERSON, THE SAME SHOULD BE RECEIVED, DIARIZED AND ACKNOWLED GMENT NUMBER SHOULD BE GIVEN TO THE APPLICANT BY THE RECE IVING OFFICER IMMEDIATELY AT THE TIME OF FILING THE APPLICATION. ON RECEIPT OF SUCH 'RECTIFICATION APPLICATION' THE SAME HAS TO BE COMPULSORILY UPLOADED IN 'ONLINE RECTIFICATION REGISTER' BY THE OFFICER ON THE DAY OF APPLICATION IS RECEIVE D BY HIM, EVEN WHEN SUCH APPLICATION IS RECEIVED IN HIS OWN OFFICE DIRECTLY OR BY POST. IN EITHER WAY, OBTAINING THE ACKNOWLEDGEMENT NUMBER IS A BASIC ENTITLEMENT OF THE APPLICANT WHILE SUBMITTING THE A PPLICATION U/S 154 BY THE OFFICER. THE LD. AR ARGUES THAT THE RECTIFICATION APPLICATIO N HAD BEEN DISPOSED OF IN BELATED FASHION AND THE ORDER REJECTING THE APPLICATION IS NON-EST. THE LD AO IN HIS ORDER U/S 154 MAKES NO REFERENCE TO THE E-FILED RECTIFICATION APP LICATION. ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 10 OF 16 I HAVE EXAMINED THE SUBMISSION OF THE LD AR, THE FI NDINGS OF THE LD. AO AND CONTEXTUALIZED THESE TO THESE GROUNDS OF APPEAL. TH AT THE APPELLANT FILED A RECTIFICATION APPLICATION ONLINE 01-12-2017 THROUGH HIS ACCOUNT O N THE E-FILING PORTAL HTTP//WWW.INCOMETAXINDIAEFILING.GOV.IN VIDE ACKNOWLEDGMENT NO. 322201290011217 IS A MATTER OF RECORD. THAT THIS APPLICATION WAS TRANSFE RRED TO THE A.O. ON 05-12-2017 IS ALSO VERIFIABLE FROM RECORD. IT IS MY CONSIDERED VIEW TH AT THE RECTIFICATION APPLICATION DULY E- FILED WAS NOT DISPOSED OF WITHIN THE STATUTORY TIME LIMIT AND THAT THE APPLICATION REFERRED TO BY THE AO IS A MANUAL APPLICATION FILED LATER BY T HE COUNSEL FOR THE APPELLANT WHICH HAS BEEN DISPOSED OF IN THE IMPUGNED ORDER.-THE MANUAL APPLICATION SIGNED BY THE COUNSEL, IS IN ITSELF NOT REGULAR UNLESS IT IS BY WAY OF A REMI NDER WITH REGARDS TO THE ONLINE APPLICATION FILED. THAT THE SUBSTANTIVE ISSUE IS DEALT WITH IN THE REMAINING GROUNDS OF APPEAL MAKES THE OBJECTIONS RAISED IN THESE GROUNDS ACADEMIC. THE AP PELLANT SUCCEEDS IN PART ON THESE GROUNDS OF APPEAL. 10. IN THE LIGHT OF THE ABOVE DIFFERENT SET OF REAS ONING, THE ISSUES RAISED ARE BEING DECIDED UNDER THE FOLLOWING SUB- ISSUES: I) LIMITATION II) WHAT WOULD CONSTITUTE RECORD ? AND III) CAN WRITTEN SUBMISSIONS WITHOUT A CONSCIOUS WAIVER BE TREATED AS WAIVE OF RIGHT TO BE HEARD ? 11. LIMITATION 11.1 ADDRESSING THE FIRST OF THE ABOVE ISSUES, IT IS EMINENTLY CLEAR THAT THE CONCLUSION THAT THE RECTIFICATION AP PLICATION DULY E-FILED WAS NOT DISPOSED OF WITHIN THE STATUTO RY TIME LIMIT REMAINS UNADDRESSED. SIMILARLY, THE REASONIN G THAT THE APPLICATION REFERRED TO BY THE AO IS A MANUAL APPLI CATION FILED LATER BY THE COUNSEL FOR THE APPELLANT CANNOT BE CONSIDERED TO BE THE ORIGINAL APPLICATION FILED THR OUGH E- PORTAL APPEARS TO BE A CASE OF HEADS YOU LOOSE AND TAILS ALSO YOU LOOSE. THE SUBMISSION AFFORDED AS AN ARGUMENT CANNOT BE SUBSTITUTED FOR THE ORIGINAL APPLICATION TO THE PREJUDICE OF ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 11 OF 16 THE ASSESSEE. IF THERE WERE DEFICIENCIES, IN THE E -FILING OF THE APPLICATION, THESE SHOULD HAVE BEEN NOTIFIED TO THE ASSESSEE FOR CORRECTING THE DEFECT. THE TAX AUTHORITIES CANNOT BE SEEN TO VIOLATE THE STATUTORY TIME LINES AT THEIR WHIMS AND FANCIES. THE DISPOSAL OF THE APPEAL IN THIS MANNER CANNOT BE UPHELD. 11.2 SIMILARLY THE REASONING THAT, THE MANUAL APPLICATION SIGNED BY THE COUNSEL, IS IN ITSELF NOT REGULAR UNL ESS IT IS BY WAY OF A REMINDER WITH REGARDS TO THE ONLINE APPLIC ATION FILED ALSO DOES NOT ADDRESS THE ISSUES AT HAND. THE ISS UE REMAINS OPEN SINCE IT IS UNCLEAR WAS IT TREATED AS A REMINDER OR A SUBSTITUTION. MOREOVER, THE FUNDAMENTAL CHALL ENGE THAT THE ACTION WAS BEYOND THE STIPULATED TIMELINE REMAI NS UNADDRESSED. AT THE COST OF REPETITION, IN CASE THERE WERE ANY DEFICIENCIES IN THE RECTIFICATION APPLICATION F ILED BY THE ASSESSEE, THEN THE DEFECT SHOULD HAVE BEEN NOTIFIE D AND OPPORTUNITY TO CORRECT THE SAME SHOULD HAVE BEEN PR OVIDED. THE ASSESSEE CANNOT BE SUBSEQUENTLY BURDENED ON ACC OUNT OF LAPSES ETC. WHICH WERE NEVER POINTED OUT. THE PRIMA RY ISSUE WHICH THUS, REMAINS FOR CONSIDERATION IS CAN THE RE CTIFICATION ORDER BE SAID TO HAVE BEEN PASSED WITHIN THE STATUT ORY TIMELINE. ON THE FACTS AS AVAILABLE ON RECORD, IT APPEARS THAT THE ANSWER IS NO. HOWEVER, SINCE THE ISSUE HAS BEE N ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 12 OF 16 DEFLECTED/OBFUSCATED, IT IS REMANDED BACK FOR CONSI DERATION AFRESH. 12. WHAT WOULD CONSTITUTE RECORD 12.1 IN CASE THE ASSESSEE DOES NOT SUCCEED ON THE PRIMARY ISSUE, THE ORDER AGAIN IS OPEN TO THE CHALLENGE ON THE GROUNDS AS TO WHAT WOULD CONSTITUTE THE RECORD FOR A CASE OF RECTIFICATION LIKE THIS WHEREIN THE RETURN IS E-FIL ED. 12.2 THE RECORD IN A CASE WHERE RETURNS ARE E-FILED , TO MY UNDERSTANDING, WOULD NOT ONLY CONSTITUTE WHAT IS PE RMITTED TO BE E-FILED ON THE E-PORTAL BUT WOULD ALSO NECESSARILY CONSTITUTE ALL THE FACTS AND EVIDENCES TAKEN INTO CONSIDERATION FO R FILING THE NECESSARY COLUMNS IN THE E-PORTAL. THIS WOULD INCL UDE THE ORDERS AND DOCUMENTS PASSED/MADE AVAILABLE BY VARIOUS OTHE R CONNECTED AUTHORITIES AS IN THE FACTS OF THE PRESEN T CASE, THE LAND ACQUISITION OFFICER. WITHOUT GETTING INTO THE ASPECT THAT IT IS ONLY JUST AND DUE TAXES FOR THE STATE WHICH OUGH T TO BE COLLECTED, IT GOES WITHOUT SAYING THAT THE LIMITATIONS OF DOCUMENTS ONLY FILED ON E-PORTAL CANNOT OPERATE AGA INST THE CITIZEN TAXPAYERS. THE SYSTEMS SET IN PLACE FOR ROBUST TAX COLLECTION CANNOT BE SO USED AS TO DEPRIVE THE TAX PAYING CITIZENS FROM GETTING A FAIR HEARING AND SEEK A PROPER ADJUD ICATION ON DISPUTED FACTS. SUCH AN ACTION WOULD BE WHOLLY UNJ USTIFIED. THE SYSTEMS AND E-PORTALS ARE STILL IN THE PROCESS OF B EING FINE TUNED ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 13 OF 16 AND STILL IN THE PROCESS OF BEING PERFECTED. THEY CANNOT BE PRESUMED TO BE SO SACROSANCT AND FINAL AND THUS BEY OND CRITICAL SCRUTINY. FOR THE PURPOSES OF THE PRESENT PROCEEDINGS, I WIL L CONFINE MYSELF TO HOLDING THAT EVERY STATUTORY ORDER/DECISION AND RELEVANT FACTS WHICH WENT INTO THE DECISION MAKING OF PUNCHING THE FIGURES ON E-PORTAL AT THE RELEVANT POINT OF TI ME WOULD CONSTITUTE THE RECORD FOR THE PURPOSES OF PROCEEDIN GS U/S 154. ALL BONAFIDE MISTAKES OF IGNORANCE OF FACTS; MISINTERPR ETATION AND INCORRECT UNDERSTANDING OF RELEVANT STATUTORY PROVI SIONS ETC. APPLICABLE AT THAT SPECIFIC POINT OF TIME WOULD BE COVERED UNDER THIS UMBRELLA. THE AXIOMS THAT THE MISTAKE IS RECT IFIABLE ONLY WHICH IS PATENTLY EVIDENT ON THE FACE OF THE RECORD OFCOURSE REMAINS INVIOLATE WHAT HAS BEEN ELABORATED IS WHAT WOULD CONSTITUTE THE RECORD. 13. WRITTEN SUBMISSIONS BE TREATED AS A WAIVER OF RIGHT TO BE HEARD 13.1 CONFINING MYSELF ONLY TO THE PRINCIPLES OF NA TURAL JUSTICE WHICH HAVE BEEN INVOKED. I AM OF THE VIEW THAT THE ANSWER POSED TO THE ABOVE QUESTION IS A NO. RIGHT TO BE HEARD FORMS THE BED ROCK OF THE PRINCIPLES OF NATURAL JUSTICE. THE WORD NATURAL JUSTICE IS DERIVED FROM THE ROMAN WORD ' JUS NATURALE ' HICH PRESUPPOSES PRINCIPLES OF NATURAL LAW INCLUDING JUS TICE, EQUITY, FAIR PLAY AND GOOD CONSCIENCE. FAIR PLAY PR E SUPPOSES FAIR NOTICE OF CHARGE, AND PLACE OF HEARING, OPPORT UNITY OF ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 14 OF 16 EFFECTIVE HEARING TO ADDRESS THE CHARGE AND SPEAKIN G ORDER ADDRESSING THE REASONS FOR AGREEING OR DISAGREEING WITH THE CLAIMS PUT FORTH. AUDI ALTEREM PARTEM WHICH IS ONE OF THE FOUNDATIONAL AND FUNDAMENTAL BED ROCKS OF NATURAL J USTICE MEANS THAT NO ONE SHOULD BE CONDEMNED UN HEARD. THO UGH THESE RULES ARE NOT NECESSARILY CODIFIED, HOWEVER, THESE HAVE EVOLVED OVER THE YEARS AND ARE EXPECTED TO BE ADHER ED TO NOT ONLY WHEN STATUTORY PROVISIONS SO PROVIDE BUT HAVE ALSO BEEN IMPLIEDLY READ INTO AND NECESSARILY REQUIRED TO BE ADHERED TO ALSO IN QUASI ADMINISTRATIVE DECISIONS WHEREBY THE RIGHTS / INTERESTS OF THE PARTY ARE ADVERSELY EFFECTED. IN SUCH CIRCUMSTANCES, FAIR PLAY AND RULE OF LAW NECESSITAT ES THAT THE PROCEDURE REQUIRED TO BE ADHERED NECESSARILY ENVISA GES A RIGHT TO BE HEARD. 13.2 IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT WRITTEN SUBMISSIONS HAD BEEN ADVANCED. IT IS SEEN THAT THE SUBMISSIONS WERE CONSIDERED BUT DID NOT FIND FAVOUR WITH THE FI RST APPELLATE AUTHORITY AS THE ORDER U/S 154 STOOD CONFIRMED. FRO M THE BODY OF THE ORDER, IT IS NOT EVIDENT WHETHER THE ASSESSEE W AS CONFRONTED WITH THE FACT THAT ITS WRITTEN SUBMISSIONS WERE NOT SUFFICIENT FOR RELIEF PRAYED FOR AND THAT THE ASSESSEE WAS GIVEN A N OPPORTUNITY OF BEING HEARD THEREAFTER. ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 15 OF 16 13.3 IT IS TRITE LAW THAT IN THE EVENTUALITY, WRI TTEN SUBMISSIONS OF THE ASSESSEE WERE FOUND TO BE INSUFFICIENT FOR G RANTING RELIEF AND WERE CONSIDERED TO BE NOT RELEVANT, THEN THE AS SESSEE SHOULD IN ALL FAIRNESS BE NECESSARILY CONFRONTED WITH THE FACT THAT ITS CLAIM WAS NOT ALLOWABLE AND BE GIVEN DUE NOTICE THE REOF. THE PURPOSE BEING THAT IF THE ASSESSEE STILL HAS SOMETH ING FURTHER TO SAY, THE OPPORTUNITY OF SO SAYING SHOULD HAVE BEEN PROVIDED. THE ARBITRARY PRESUMPTION THAT THE ASSESSEE SHALL HAVE NOTHING TO STATE CANNOT BE UPHELD. THE DUE PROCESS OF LAW ENVISAGES AN OPPORTUNITY OF FAIR REPRESENTATION. IT IS EVIDENT FROM THE IMPUGNED ORDER ASSAILING WHICH SPECIFIC GROUND INVO KING PRINCIPLES OF NATURAL JUSTICE HAS BEEN TAKEN THAT THE RIGHT TO BE HEARD WAS NOT WAIVED OFF BY THE ASSESSEE BY MERE MA KING AVAILABLE OF THE WRITTEN SUBMISSIONS TO THE FIRST APPELLATE AUTH ORITY. NO DOUBT A PARTY MAY CHOOSE TO WAIVE THE RIGHT TO BE H EARD AND INSTEAD CHOOSE TO RELY ONLY ON WRITTEN SUBMISSIONS. HOWEVER, IT IS THE DUTY OF THE ADJUDICATING AUTHORITIES TO E NSURE THAT THE WAIVER SO MADE IS INTELLIGENTLY MADE AND WITH F ULL KNOWLEDGE AND UNDERSTANDING I.E; WITH THE FOREKNOWLEDGE THAT THE RIGHT TO BE HEARD 'EXISTS. THE RECORD IS SILENT ON THIS ASPECT. IN THE FACTS OF THE PRESENT CASE THERE IS NOTHING ON RECORD TO SHOW THA T THE RIGHT TO BE HEARD WAS CONSCIOUSLY AND KNOWINGLY WAI VED. 13.4 ACCORDINGLY, IN VIEW THEREOF, THE ORDER CANNO T BE UPHELD AND DESERVES TO BE SET ASIDE. ITA-1089/CHD/2019 A.Y. 2015-16 PAGE 16 OF 16 14. THUS, FOR THE VARIOUS REASONS SET OUT HEREINABO VE IN DETAIL, THE IMPUGNED ORDER IS SET ASIDE IN TOTO AND RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING O RDER IN ACCORDANCE WITH LAW FIRST ON THE MAINTAINABILITY OF THE ORDER ITSELF AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IN CASE THE ASSESSEE DOES NOT SUCCEED THE OTHER ISS UES CHALLENGED SHALL BECOME LIVE ON WHICH TOO, THE LD. COMMISSIONE R SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. SAID ORDER W AS PRONOUNCED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESEN CE OF THE PARTIES VIA WEBEX. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH APRIL,2021. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT4. ( )/ THE CIT(A)5. , , / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR