Om Narain Singh, Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 110/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78587 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 25-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: P K KAPOOR
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO S . 110 & 1 11/LKW/2014 ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 OM NARAIN SINGH LUCKNOW V. ASS T. CIT CENTRAL CIRCLE I, LUCKNOW PAN: AOFPS3775M (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 24 0 6 2014 DATE OF PRONOUNCEMENT: 27 0 6 2014 O R D E R PER SUNIL KUMAR YADAV : THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER OF THE LD. CIT(A) FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 ON VARIOUS COMMON GROUNDS. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS OF APPEAL RAISED IN I.T.A NO.110/LKW/2014 AS UNDER: - 1. BECAUSE THE ASSESSMENT ORDER DATED 30.12.2010 WHICH WAS SUBJECT MATTER OF 1ST APPEAL WAS NOT VALID FOR THE REASONS THAT A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLANT COULD NOT HAVE BEEN HELD TO BE THE 'PERSON IN WHOSE CASE S EARCH AND SEIZURE ACTION HAS BEEN INITIATED'; AND B) IN ANY CASE, THE APPELLANT ALREADY STOOD ASSESSED FOR THE ASSESSMENT YEAR 2006 - 07 AND NO ASSESSMENT RELATED PROCEEDINGS WERE PENDING AT THE TIME OF SEARCH ON 19.11.2008; AND PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : C) IN ANY CASE NO INCRIMI NATING MATERIAL WHICH COULD BE SAID TO BE P ERTAINING TO THE APPELLANT WAS FOUND DURING THE COURSE OF SAID SEARCH AND VIEW TO THE CONTRARY AS HAS BEEN TAKEN BY THE CIT(A) IS WHOLLY INCONSISTENT WITH THE FACTS OF THE CASE AND LAW APPLICABLE THERETO . 2. BECAU SE IN ANY CASE, THE SEARCH AND SEIZURE ACTION DID NOT LEAD TO THE RECOVERY OF ANY INCRIMINATING MATERIAL SO FAR AS THE APPELLANT IS CONCERNED AND NO ADDITION IN HIS HANDS COULD HAVE BEEN MADE IN THE PROCEEDINGS UNDER SECTION 153A, EITHER ON FACTS OR IN LAW . WITHOUT PREJUDICE TO THE AFORESAID 3. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN MAKING/SUSTAINING AN ADDITION OF RS.15,63,883/ - TO THE INCOME OF THE APPELLANT, ON ACCOUNT OF INVESTMENT IN CONSTRUCTION OF HOUSE AT IIM ROAD, LUCKNOW O N THE BASIS OF VALUATION REPORT OBTAINED UNDER SECTION 142A. 4. BECAUSE THERE EXISTED NO MATERIAL, NOR ANY EXPRESSION OF OPINION BY THE ASSESSING OFFICER WHICH COULD WARRANT A REFERENCE TO THE VALUATION CELL UNDER SECTION 142A AND REPORT OBTAINED THEREUNDE R, COULD NOT HAVE BEEN MADE THE BASIS OF ADDITION IN THE HANDS OF THE APPELLANT. 5. BECAUSE IN ANY CASE AND WITHOUT PREJUDICE TO THE FOREGOING GROUND PARTICULARLY THAT ON A DUE CONSIDERATION OF FACTS AND CIRCUMSTANCES THAT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : A) INVESTMENT IN HOUSE PROPERT Y HAD BEEN MADE BY SRI K.N. SINGH PATEL WHICH HAD DULY OWNED THE SAME, A STATEMENT UNDER SECTION 132(4) FOLLOWED BY A SWORN - IN STATEMENT DATED 25.02.2009; B) THE INVESTMENT SO OWNED BY HIM HAD DULY BEEN DISCLOSED IN THE RETURN FILED AFTER SEARCH AND SEI ZURE ACTION; AND C) ON THE BASIS OF RETURN SO FILED, SRI K.N. SINGH PATEL HAD BEEN SUBJECTED TO ASSESSMENT ALSO ON SUBSTANTIVE BASIS THE CIT(A) SHOULD HAVE HELD THAT SOURCE OF INVESTMENT IN PROPERTY STOOD FULLY EXPLAINED AND NO ADDITION ON THAT SCORE WA S CALLED FOR AND JUSTIFIED IN THE CASE OF THE APPELLANT. 6. BECAUSE THE ADDITION OF RS.15,63,883/ - AS HAS BEEN MADE/SUSTAINED IN THE HANDS OF THE APPELLANT, IS WHOLLY VITIATED, FOR THE REASON OF NON - CONSIDERATION OF RELEVANT INFORMATION AND MATERIAL AS HAD BEEN PLACED ON RECORD AND THE SAME DESERVES TO BE DELETED. 7. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2 . DURING THE COURSE OF HEARING OF THE APPEAL S , THE LD. COUNSEL FOR THE ASSESSEE, SHRI. PRADEEP KUMAR KAPOOR, C.A. HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) THAT HE HAS FIXED ONLY ONE DATE OF HEARING AND ON THAT DATE THE LD. COUNSEL FOR THE ASSESSEE APPEARED, BUT UNFORTUNATELY HE WAS NOT CARRYING THE POWER OF ATTORNEY AND MADE A REQUEST FOR ADJOURNMENT. THE LD. CIT(A) CONCLUDED THE HEARING WITHOUT HEARING THE LD. COUNSEL FOR THE ASSESSEE, AS HE WAS NOT HAVING VALID POWER OF ATTORNEY. SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL S AFTER AFFORDING OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE, THE ORDER S OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED BACK TO HIS FILE FOR RE - ADJUDICATION OF THE APPEAL S AFRESH ON MERIT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER S OF THE LD. CIT(A). 4 . HAV ING CAREFULLY EXAMINED THE ORDER S OF THE LD. CIT(A), WE FIND THAT UNDISPUTEDLY THE MATTER WAS LISTED FOR HEARING ON 9.11.2011 AND THE LD. COUNSEL FOR THE ASSESSEE, SHRI. PRADEEP KUMAR KAPOOR, C.A. HAD APPEARED BEFORE THE LD. CIT(A) BUT HE WAS NOT CARRYING THE POWER OF ATTORNEY. THE LD. COUNSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT WHICH WAS DENIED BY THE LD. CIT(A) AND HEARD THE APPEAL. THE LD. CIT(A) , INSTEAD OF AFFORDING OPPORTUNITY TO THE LD. COUNSEL FOR THE ASSESSEE TO FILE POWER OF ATTORNEY AND TO PRO S ECUTE HIS CASE EFFECTIVELY , HAS CONCLUDED THE HEARING ON THE SAME DAY AND DISPOSED OF THE APPEAL S . THE ACTION OF THE LD. CIT(A) CANNOT BE APPRECIATED , AS HE WAS REQUIRED TO AFFORD PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE CONCLUDING THE HEA RING. THEREFORE, WE SET ASIDE THE ORDER S OF THE LD. CIT(A) IN BOTH CASES AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTI O N TO RE - ADJUDICATE THE APPEALS ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSES SEE TO EXTEND ALL SORT OF CO - OPERATION TO THE LD. CIT(A) AND PUT HIS APPEARANCE AS AND WHEN REQUIRED BY THE LD. CIT(A). 5 . IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH JUNE , 2014 JJ: 2406 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )