Sh. Hardev Singh, Ludhiana V. ITO, Khanna

ITA 115/CHANDI/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5103 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO/115/CHD/2017 ASSESSMENT YEAR : 2010-11 SHRI HARDEV SINGH, VS. THE ITO, S/O SHRI KRISHAN SINGH WARD - II, V & PO MAQSUDRAN, KHANNA. TEHSIL PAYAL, DISTT. LUDHIANA. PAN NO. CSQPS0044A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : NONE (APPLICATION) DATE OF HEARING : 06.04.2017 DATE OF PRONOUNCEMENT : 07.06.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 03.10.2016 OF LD.CIT (APPE ALS)-2 LUDHIANA PERTAINING TO 2010-11 ASSESSMENT YEAR ON VARIOUS GROUN DS. THUS, THOUGH THE ADDITIONS HAVE BEEN CHALLENGED ON MERITS ALSO BUT SINC E WE ARE PRESENTLY CONCERNED WITH THE CHALLENGE TO THE PROCEDUR E AND JURISDICTION ETC. OF THE AO CHALLENGED BEFORE HIM, THE FOLLOWING TWO GROUN DS ARE REPRODUCED HEREUNDER : 1. THAT THE LD. CIT(A) HAS WRONGLY PASSED AN EX PA RTE APPELLATE ORDER IN CASE OF THE APPELLANT. 2. THAT THE LD. CIT(A) HAS WRONGLY FAILED TO ADJUDI CATE THE GROUND OF APPEAL RELATING TO WRONG INITIATION OF THE PROCEEDINGS U/S147/148 OF T HE INCOME TAX ACT, 1961 IN CASE OF THE APPELLANT. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE AO ACT ING ON THE TEP (TAX EVASION PETITION) INFORMATION ABOUT CERTAIN LAND PURCHASES B Y THE ASSESSEE CONSIDERING THE RECORD, ISSUED NOTICE U/S 148 AND AFTER R EQUIRING THE ASSESSEE TO EXPLAIN, REJECTED THE EXPLANATION AND MADE ADDITIONS UNDER SECTION 148/143(3) OF INCOME TAX ACT,1961. AS A RESULT OF THIS, INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 22,51,370/- AS OPPOSE D, TO THE TOTAL INCOME OF RS. 1,30,000/- 2.1. THE ASSESSEE CHALLENGED THE ADDITIONS IN APPEAL BEFOR E THE LD. CIT(APPEALS) AND ALSO THE JURISDICTION OF THE AO. THE JURIS DICTIONAL ISSUE 2 WAS RAISED VIDE GROUND NO. 1 WHICH IS EXTRACTED FROM THE IMPUGNED ORDER AND REPRODUCED HEREUNDER FOR READY REFERENCE : 1. THAT THE LD. AO HAS WRONGLY INITIATED PROCEEDIN GS U/S 147/148 OF THE L.T. ACT, 1961 IN CASE OF THE APPELLANT. 3. ON THE TWO DATES OF HEARING FIXED BY THE CIT(A), THE AS SESSEE SOUGHT ADJOURNMENTS. ON THE NEXT DATE OF HEARING I.E. 08.08.2016, THE ASSESSEE REMAINED UNREPRESENTED. IN THE CIRCUMSTANCES THE ADDIT IONS MADE BY THE ASSESSING OFFICER WERE CONFIRMED BY THE LD. CIT(A) HOLDING THE ASSESSEE AS NOT SERIOUS IN PURSUING THE APPEAL FILED. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. AT THE TIME OF HEARING, AN ADJOURNMENT WAS MOVED BY THE LD. SR.DR REQUE STING FOR TIME. HOWEVER, SINCE THE MATERIAL FOR DECIDING THE ISSUES RAISED IN GROUND NOS. 1 & 2 WAS AVAILABLE ON RECORD, THE REQUEST FOR TIME WAS REJ ECTED AND IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE APPEAL EX-PA RTE QUA THE REVENUE-RESPONDENT ON MERITS. 5. THE LD. AR INVITING ATTENTION TO THE GROUND RAISED BEFORE THE CIT(A) SUBMITTED THAT THE JURISDICTIONAL ISSUE HAS NOT BEEN DECID ED BY THE SAID AUTHORITY AND ONLY THE ADDITIONS MADE BY THE ASSESSING OFFICER HAVE BEEN CONFIRMED. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE IMPU GNED ORDER MAY BE SET ASIDE AND THE ISSUES BE RESTORED TO THE FILE OF THE LD. CIT(APPEALS) FOR RE-ADJUDICATION. 6. I HAVE HEARD SUBMISSIONS AND PERUSED THE MATERIAL AVA ILABLE ON RECORD. THE RECORD SHOWS THAT THE IMPUGNED ORDER IS P ASSED ON 03.10.2016 AND AS PER PARA 3 OF THE SAID ORDER, THE LAST DATE OF HEARING FIXED WAS MENTIONED AS 08.08.2016 ON WHICH DATE ALSO, THE ASSESSEE DID NOT APPEAR. IN THE CIRCUMSTANCES, I AM OF THE VIEW THAT BEFORE PASSING THE ORDER, THE LD. COMMISSIONER WOULD HAVE BEEN WELL ADVISED TO GRANT ANOTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. EVEN OTHER WISE, ADMITTEDLY JURISDICTIONAL ISSUE HAS NOT BEEN DECIDED IN THE PRESENT P ROCEEDINGS DESPITE THE FACT THAT A SPECIFIC GROUND IS FOUND TO HAVE BEEN RA ISED. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR WHILE RE QUESTING A REMAND, THE IMPUGNED ORDER IS SET ASIDE IN TOTO AND THE ISSUES ARE RESTORED BACK TO THE FILE OF LD. CIT(APPEALS) FOR FIRST DECIDING THE JURISD ICTIONAL ISSUE AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEIN G HEARD AND THEREAFTER TO DECIDE THE ISSUE ON MERITS, IF NEED BE. 3 6.1. WHILE SO DIRECTING, IT IS MADE CLEAR THAT THE OPPORTUN ITY SO PROVIDED TO THE ASSESSEE IN GOOD FAITH, IT IS HOPED, IS NOT ABUSED AND IS UTILIZED IN MAKING A FULL AND PROPER COMPLIANCE BEFORE THE CIT (APPEALS). IN THE EVENTUALITY OF ABUSE OF THE SAME, IT IS MADE CLEAR THAT TH E LD. CIT (APPEALS) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDAN CE WITH LAW. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING IT SELF. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JUNE,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.