Sh. Krishan Kumar, Mohali V. ITO, W-6(4), Mohali

ITA 1162/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3807 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KRISHAN KUMAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1162/CHD/2018 / ASSESSMENT YEAR : 2009-10 SHRI KRISHAN KUMAR, # 168/1, KSB SOCIETY, KHARAR. VS THE ITO, WARD 6(4), MOHALI. ./PAN NO. : CRLPK9396M /APPELLANT /RESPONDENT ! ' /ASSESSEE BY : SHRI KRISHAN KUMAR # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! & /DATE OF HEARING : 21.01.2019 '()* ! & /DATE OF PRONOUNCEMENT : 04.02.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 14.06.2018 OF CIT(A)-2 CH ANDIGARH ON THE FOLLOWING GROUNDS : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-! , CHANDIGARH AS ERRED IN PASSING EX-PARTE ORDER AND CONFIRMING THE ORDER OF ASSESSING OFFICER. 2. THAT NO REASONABLE OR PROPER OPPORTUNITY HAVE BEEN AFFORDED TO THE ASSESSEE BY THE LD. CIT(A) FOR REPRESENTING HIS CAS E BEFORE HER. 3. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, T HE ADDITION AS CONFIRMED BY THE LD. CIT(A) IS AGAINST THE FACTS AN D CIRCUMSTANCES OF THE CASE. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION WAS MOVED BY THE ASSESSEE SEEKING TIME. THE ASSESSEE PRESENT IN PERS ON IN SUPPORT OF THE APPLICATION WAS REQUIRED TO ADDRESS THE FACT THAT TH E IMPUGNED ORDER IS AN EX-PARTE ORDER WHEREIN THE APPEAL OF THE AS SESSEE HAS BEEN DISMISSED FOR NON-REPRESENTATION. THE ASSESSEE WAS REQUIR ED TO ADDRESS AS TO WHY ON 14.06.2018 THE SPECIFIC DATE NOTICED BY THE LD. CIT(A), THE ASSESSEE FAILED TO APPEAR. ON A READING OF THE IMPUGNED O RDER, IT WAS NOTICED THAT INFACT VARIOUS OPPORTUNITIES HAD BEEN GIVEN T O THE ASSESSEE ITA NO. 1162/CHD/2018 PAGE 2 OF 3 ON WHICH DATES, ADJOURNMENT HAD BEEN SOUGHT. THE ASSES SEE PRESENT IN PERSON SUBMITTED THAT ON 14.06.2018, HIS COUNSEL APPEARED , HOWEVER, THE CIT(A) DISMISSED THE APPEAL. I FIND THAT THIS SUBMISSION IS UNSUPPORTED. ACCORDINGLY, WITHOUT GETTING INTO THIS DEBAT E, TAKING NOTE OF THE FACT THAT THE IMPUGNED ORDER ADMITTEDLY IS AN EX- PARTE ORDER WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON- REPRESENTATION AND THUS IT IS NOT IN CONFORMITY WITH THE S TATUTORY REQUIREMENTS. ACCORDINGLY, THE LD. SR.DR WAS REQUIRED TO ADDRESS WHETHER SHE HAS ANY OBJECTIONS FOR RESTORING THE APPEA L BACK TO THE FILE OF THE SAID AUTHORITY. 3. CONSIDERING THE RECORD, LD. SR.DR STATED THAT SHE HAS NO OBJECTION IF THE ISSUE IS REMANDED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. IN THE FACTS OF THE PRESENT CASE IT IS SEEN THAT ON ACCOUNT OF SALE OF BOOTH NO. 209 SHASTRI MARKET, SECTOR 22-C, CHANDIGARH, INFORMATION WAS GENERATED FROM THE AST SYSTEM AND THE ASSESSEE W AS REQUIRED TO EXPLAIN THE SALE AMOUNT. THE AO VIDE ORDER U/S 144/147 O F THE ACT IN THE ABSENCE OF ANY EXPLANATION, CONFIRMED THE ADDITION. IN T HE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, IT IS SEEN THAT THE A SSESSEE THOUGH SOUGHT TIME, HOWEVER, DID NOT EFFECTIVELY PARTICIPATE. ACCO RDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE ASSESSEE PR ESENT IN PERSON THAT HE SHALL PARTICIPATE FULLY AND FAIRLY IN THE PROCEEDINGS BEFORE THE CIT(A), THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE SAID AUTHORITY. NEEDLESS TO SAY THAT FRESH EVIDENCES, IF ANY RE QUIRED TO BE BROUGHT ON RECORD SHALL BE TAKEN ON RECORD IN VIEW OF TH E FACT THAT THE ASSESSMENT HAS BEEN MADE U/S 144. THE CONCLUSION TO RESTORE THE APPEAL BACK TO THE CIT(A) NOTICING THAT EFFECTIVE OPPORTUN ITY OF BEING HEARD HAS NOT BEEN GIVEN TO THE ASSESSEE IS FURTHER FOR TIFIED BY THE FACT THAT EVEN OTHERWISE THE ORDER PASSED IS NOT IN CONFORMIT Y WITH THE STATUTORY REQUIREMENTS. SUB SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT,1961 MANDATES THAT THE CIT(A) WHILE EXERCISING HI S APPELLATE AUTHORITY IS REQUIRED TO NOT ONLY PASS AN ORDER IN WR ITING, HE IS ALSO REQUIRED TO STATE THEREIN THE POINTS FOR DETER MINATION AND THE REASONS FOR THE DECISION. THE STATUTE MANDATES THAT THE CIT(A) SHALL GIVE HIS CONCLUSION BACKED BY REASONS FOR ARRIVING AT THE CONCLUSION. THE SAID EXERCISE IN THE IMPUGNED ORDER IS FOUND TO BE ITA NO. 1162/CHD/2018 PAGE 3 OF 3 MISSING. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKIN G GIVEN BY THE ASSESSEE PRESENT IN PERSON, THE IMPUGNED ORDER IS S ET ASIDE. WHILE SO DIRECTING, IT IS MADE CLEAR THAT IT IS HOPED THAT T HE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IN GOOD FAITH IS UTILIZED BY PARTICIPATING FULLY AND FAIRLY BEFORE THE CIT (A) AND IS NOT ABUSED. IN THE EVENTUALITY OF ABUSE, IT IS MADE CLEAR THAT THE LD. CIT(A) WOULD B E AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN T HE OPEN COURT ON THE DATE OF HEARING ITSELF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.02. 2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR