ITO, W-2, Khanna V. Sh. Kulwinder Singh, Ludhiana

ITA 1193/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5309 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SOOD
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 1193/CHD/2017 ASSESSMENT YEAR: 2009-10 THE ITO, VS. SHRI KULWINDER SINGH, WARD-2, S/O SHRI TARLOK SINGH, KHANNA. VILLAGE RAI MAJRI, TEH.-PAYAL, DISTT. LUDHIANA. PAN NO.CTMPS9938Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K.SOOD RESPONDENT BY : SMT. CHANDER KANTA, SR.DR DATE OF HEARING : 02.11.2017 DATE OF PRONOUNCEMENT : 12.01.2018 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 16.05.2017 OF CIT(A)-2 LU DHIANA PERTAINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUND : 1. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD C1T(A) WAS RIGHT IN RESTRICTING THE DISALLOWANCE OF RS. 36,50,000/- U/S 68 OF THE I.T. ACT 1961 ON ACCOUNT OF UNEXPLAINED CASH CREDIT TO RS. 1,10,500/-, IGNOR ING THE FINDING RECORD BY THE A.O. WHILE PASSING ASSESSMENT ORDER U/S 144 OF THE I.T. ACT, THAT THE ASSESSEE HAS FAILED TO PROVE THE SOURCES OF CASH DEPOSITS. 2. THAT THE ORD ER OF CIT(APPEAL)-2, LUDHIANA THE SET ASIDE AND THAT OF THE A.O. BE RESORTED. 2. THE LD. AR AT THE TIME OF HEARING FILED HIS POWER OF ATTO RNEY AND ORALLY SOUGHT TIME TO PREPARE THE CASE AND TO ARGUE T HE APPEAL SOME OTHER DAY. HOWEVER, ON CONSIDERING THE RECORD, IT WAS SEEN THA T SINCE THE RELEVANT FACTS FOR DECIDING THE ISSUES WERE READILY AVAILABLE ON RECORD, IT WAS DEEMED APPROPRIATE TO REJECT THE ORAL PRAYER AND PROCEED WITH THE PRESENT APPEAL AFTER HEARING THE LD. SR.DR. 3. THE RECORD SHOWS THAT THE ASSESSEE WAS REQUIRED T O EXPLAIN THE DEPOSITS IN ITS SAVING BANK ACCOUNT MAINTAINED WITH THE B ANK OF INDIA, DORAHA OF RS. 36,50,000/-. THE ASSESSEE DESPITE VARIOUS OPPORTUNIT IES, FAILED TO EXPLAIN THESE WHICH RESULTED IN AN ADDITION OF THE S AID AMOUNT BEING MADE IN HIS HANDS. 4. THE ISSUE WAS CARRIED IN APPEAL BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY PRAYING FOR ADMISSION OF FRESH EVIDENCE. THE EVIDENCE ITA-1193/2017 A.Y.2009-10 PAGE 2 OF 9 WAS CONFRONTED TO THE AO. THE AO OBJECTED TO THE ADMIS SION OF THE EVIDENCE. THE CIT(A) NOTING THE OBJECTION, AGAIN DIRECTED THE EVIDENCE TO BE CONSIDERED BY THE AO ON MERITS. THEREAFTER, CONSIDER ING THE REMAND REPORT OF THE AO, THE CIT(A) GRANTED PART RELIEF TO THE EX TENT THE EVIDENCE WAS ACCEPTED BY THE AO IN SUPPORT OF ASSESSEE'S CLAIM. AGGRIEVED BY THIS RELIEF, THE REVENUE IS IN APPEAL. 5. THE LD. SR.DR RELIED UPON THE ASSESSMENT ORDER. HOWEVE R, ON IT BEING POINTED OUT THAT RELIEF HAS BEEN GIVEN ON CONSIDERING THE REMAND REPORT OF THE AO, OBJECTION WAS RAISED TO THE ADMISSION O F FRESH EVIDENCE BY THE CIT(A). IT WAS NOTED THAT NO SPECIFIC GROUND ON T HIS ISSUE HAD BEEN RAISED AND EVEN OTHERWISE, IN THE FACE OF THE CONCESSIONS GIVEN BY THE AO IN THE REMAND REPORT ITSELF ON THE MERITS OF THE ADDITION, T HE SAID ARGUMENT HAD NO RELEVANCE UNLESS THE EVIDENCES CONSIDE RED IN THE PRESENT PROCEEDINGS WERE REBUTTED. THE LD. SR.DR STATED THAT IN THE CIRCUMSTANCES, HE WOULD ONLY RELY UPON THE ASSESSMENT ORDER. 6. I HAVE HEARD THE SUBMISSIONS AND CONSIDERED THE MATE RIAL AVAILABLE ON RECORD. THE ADDITION IN THE FACTS OF THE PRESENT CAS E WAS MADE BY AN ORDER U/S 144 R.W.S. 147 OF THE ACT BASED ON BANK DEPOSITS WHICH REMAINED UNEXPLAINED IN THE ASSESSMENT PROCEEDINGS. ON A READING OF T HE IMPUGNED ORDER, IT IS SEEN THAT FRESH EVIDENCE HAS BEEN A DMITTED CONSIDERING THE FOLLOWING FACTS EXTRACTED FROM THE ORDER UNDER CHALLEN GE : 1. THAT ASSESSEE LIVES IN VILLAGE RAIMAJARA WHICH IS A SMALL VILLAGE OF TEHSIL PAYAL, DISTT LUDHIANA, IT HAS A POPULATION BELOW 10000 PEOPLE. M OST OF THE LIE ARE ILLITERATE HERE AND NEVER HEARD ABOUT THE INCOME TAX DEPARTMENT. 2. THAT THE NOTICE IS NOT IN REGIONAL LANGUAGE ASSESSEE HIM SELF COULD NOT UNDERSTOOD THE NOTICE. HE TOOK THE HELP OF HIS FRIEND WHO NARRATE HIM NOT ICE AND ASK HIM HAVE YOU ANY ACCOUNT IN DORAHA. ? . HE SAID NO. HE HAS BEEN TOLD BY HIS FRIEND IF YO U DID NOT HAVE ANY BANK ACCOUNT IN DORAHA YOU DON'T NEED TO WORRY . 3. THAT HE PRESENT HIMSELF BEFORE THE AO AND ASK HIM ABOUT THE NOTICE . AO INTERPRET THE NOTICE BEFORE THE ASSESSEE AND ASK AB OUT THE AIR INFORMATION RECEIVED. ASSESSEE TOLD THE AO THAT IN THAT PERIOD HE SOLD HI S AGRICULTURAL LAND AND DEPOSIT CASH IN SAVING BANK ACCOUNT MAINTA INED IN PAYAL. 4. THAT HE HAS BEEN ASKED TO PRODUCE THE EVIDENCE OF SALES OF PROPERTY . AS THE ASSESSEE IS ILLITERATE AND DID NOT UNDERSTAND THE PROVISION OF INCOME TAX AND ALSO SOLD THE PROPERTY FOR THE FIRST TIME IN HIS LI FE HAS NOT RETAINED THE SALES DEED WITH HIM. 5. THAT FIRST HE ASK FROM THE PURCHASER TO GIVE XEROX OF THE SALES DEED BUT THEY REFUSE TO DO SO FOR THE REASON BEST KNOWN TO H IM. THEN HE ASK THE SUB REGISTRAR FOR THE PROCEDURE FOR ISSUE OF DUPLICATE SALES DEED. SUB REGISTRAR TOLD THE PROCEDURE AND HE APPLIED FOR THE SAME. 6. THAT ON 03/06/2015 HE RECEIVED DUPLICATE COPY OF RE GISTRY BY WHICH HE CAN PROOF THAT CASH DEPOSITED IN THE BANK WAS AGAINST T HE RECEIPT OF SALES OF AGRICULTURAL LAND. THIS DATE IS MENTIONED ON XEROX OF SALES DEED . ITA-1193/2017 A.Y.2009-10 PAGE 3 OF 9 6.1. ON A READY OF THE ABOVE FACTS, IT IS EVIDENT THAT APA RT FROM PLEADING ILLITERACY, IGNORANCE OF THE PROCEDURES AND RELEVANCE OF RE TAINING COPY OF THE SALE DEED WAS ALSO NOT UNDERSTOOD. REFERENCE IS MAD E TO EFFORTS INITIALLY TO OBTAIN A COPY FROM THE PURCHASER, WHICH FAILED A S THE PURCHASER DECLINED TO HAND OVER HIS COPY AND THE EFFORTS TO FOLLOW-UP FOR ISSUE OF A DUPLICATE SALE DEED FROM THE OFFICE OF THE SUB REG ISTRAR AFTER FIRST ACQUAINTING HIMSELF WITH THE PROCEDURES ETC. TO DO S O ARE FOUND TO HAVE BEEN PLEADED. IT IS SEEN THAT THE EVIDENCE SOUGH T TO BE FILED ADMITTEDLY WAS THE DUPLICATE COPY OF THE REGISTERED SALE DEED RECEIVED ON 03.06.2015. THE ASSESSEE IS ALSO FOUND TO HAVE SUBMITTED A S PER SUBMISSIONS EXTRACTED IN PAGE 4 AND 5 OF THE IMPUGNED OR DER THAT HE IS A FARMER LIVING IN A SMALL VILLAGE RAIMAJARA TEHSIL PAYAL DISTRICT LU DHIANA AND BEING ILLITERATE; HE WAS NOT AWARE OF THE INCOME TAX DEPARTMENT ITSELF LET ALONE THE RESPONSIBILITIES IN INCOME TAX PROCEEDINGS. COP Y OF THE JAMABANDI DEMONSTRATING THE OWNERSHIP OF AGRICULTURAL LANDS IN THE NA ME OF HIS FATHER WAS ALSO SOUGHT TO BE PLACED ON RECORD. IT WAS SUBMITTED THAT IN 2007, ONE OF THE BROTHERS SEPARATED FROM THE FA MILY, AS A RESULT OF THIS, VARIOUS AGRICULTURAL LANDS WERE TRANSFERRED BY HIS FATH ER TO HIS SONS THROUGH VARIOUS TRANSFER DEEDS. COPY OF TRANSFER DEED S HOWING TRANSFER OF PROPERTY FROM TARLOK SINGH (FATHER) TO KULWINDER SINGH ( ASSESSEE) VIDE VASIKA NO. 2860 DT. 18.01.2007 WAS ENCLOSED AND SINCE THE FATHER WHO WAS AGED AND OLD WITH WHOM THE ASSESSEE WAS LIVING COULD NOT GO TO THE BANK TO DEPOSIT THE CASH PROCEEDS FROM SALE OF AGRICULTUR AL LAND, THE FOLLOWING AMOUNTS WERE DEPOSITED ON DIFFERENT DATES : FATHER ASSESSEE A. SALES OF AGRICULTURE LAND VIDE VASIKA NO.: 14 80 DT 08/09/2008 550694.00 254176.00 B. SALES OF AGRICULTURE LAND VIDE VASIKA NO.: 1481 DT 08/09/2008 508333.00 0.00 C. SALES OF AGRICULTURE LAND VIDE VASIKA NO.: 1888 DT 04/11/2008 0.00 607792.00 D. SALES OF AGRICULTURE LAND VIDE VASIK A NO.:1889 DT 04/11/2008 0 .00 607792.00 E. SALES OF AGRICULTURE LAND VIDE VASIK A NO.:1890 DT 04/11/2008 0.00 607792.00 F. SALES OF AGRICULTURE LAND VIDE VASIK A NO.:2959 DT 13/02/2009 0 .00 327299.00 G. SALES OF AGRICULTURE LAND VIDE VASIK A NO. 2960 DT. 13.02.2009 0. 00 154137.00 TOTAL RECEIPTS FROM SALE S OF AGRICULTURE LAND 10 59029.00 6.2 COPIES OF REGISTRIES IN RESPECT OF THESE TRANSFER S WERE ALSO PLACED AS FRESH EVIDENCES. IT HAS BEEN SUBMITTED THAT FROM 08.09.20 08 TO 13.02.2009, HIS ENTIRE AGRICULTURAL LAND WAS SOLD TO DIFFERENT B UYERS AS PER COPIES OF REGISTRIES ENCLOSED. THE LAND WAS CLAIMED TO BE A GRICULTURE AS THE POPULATION OF PAYAL WAS STATED TO BE BELOW 10000 ( A PPROXIMATELY 8150) AS PER POPULATION CENSUS 2011, NOTIFICATION NO. 9447 D ATED 06.01.1994 S.NO. 18 AND SUB S.NO. 23 CLEARLY DEFINE PAYAL A S VILLAGE AREA. THE DESCRIPTION OF THE LAND GIVEN IN THE REGISTRY, IT HAD B EEN PLEADED, ITA-1193/2017 A.Y.2009-10 PAGE 4 OF 9 ITSELF IDENTIFIED THE PROPERTY AS CHAHI, NEHRI, AABI. RELY ING ON THE SAME IT WAS FURTHER SUBMITTED THAT IT PROVES THAT THE LA ND WAS AGRICULTURAL. ON THE SAID LAND, WHEAT AND RICE WAS STATED TO HAVE BEEN PRODUCED OVER THE YEARS. IN SUPPORT OF THE SAID CLAIM, C OPIES OF FORM-J REFLECTING SALES OF WHEAT AND RICE ARE ALSO FOUND TO BE INC LUDED AS FRESH EVIDENCES. IT WAS ALSO STATED THAT THE ASSESSEE ALSO SUPPLIED MILK TO THE SURROUNDING PEOPLE AND ALSO TO PAYAL MILK COOPERATION SOCIE TY LTD. MONTHLY STATEMENT ISSUED BY THE SAID SOCIETY ACKNOWLED GING THE SUPPLY OF MILK WAS ALSO RELIED UPON AS FRESH EVIDENCE. RELIANCE WAS ALS O PLACED ON COPY OF THE SAVING BANK ACCOUNT IN BANK OF INDIA, PAYAL AN D BANK STATEMENT DISCLOSING THESE DEPOSITS WAS ALSO RELIED UPON A S FRESH EVIDENCE. IT WAS FURTHER STATED THAT THE NOTICE WAS NOT INITIALLY UNDERSTOOD AND THE FACTS REFERRED TO IN THE INFORMATION EXPLAINED, WERE STATED TO BE INCORRECT. FOR READY REFERENCE, RELEVANT EXTRACT FROM THE SUBMISSIONS ON RECORD ARE REPRODUCED : 13. THAT THE NOTICE ISSUED BY ITO WAS NOT UNDERSTA NDABLE TO ASSESSEE AS IT WAS NOT IN REGIONAL LANGUAGE. NOTICE WAS NOT PROPER AS IT WAS MENTIONED THAT ASSESSEE HAS AN ACCOUNT BANK ACCOUNT IN BANK OF INDIA, DORAH A BUT ASSESSEE DOES NOT HAVE ANY BANK ACCOUNT IN DORAHA. DORAHA IS 10 KM FROM TEHSIL PAYAL. TEHSIL PAYALIS A BANKING HUB FOR ALL THE NEAREST VILLAGER WITHIN 5 K ILOMETER. SO ASSESSEE HAS BANK ACCOUNT IN PAYAL (EMPHASIS SUPPLIED) 6.3 THE CIT(A) HAS CONFRONTED THE EVIDENCES TO THE AO. ADMISSION OF FRESH EVIDENCE HAS BEEN OBJECTED TO BY THE AO VIDE HIS REMAND REPORT DATED 11.11.2016 EXTRACTED AT PAGES 9 TO 11 OF THE OR DER. THE CIT(A) CONSIDERING THE OBJECTIONS OVERRULED THEM HOLDING THAT TH E ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH WAS ALSO CONSIDERED TO BE RELEVANT AND CRUCIAL. THE REVENUE HA S NEITHER REBUTTED THE CLAIMS LEADING TO THE ADMISSION OF FRESH EVIDENCE NOR H AS IT REBUTTED THE FACTUM OF ITS RELEVANCE OR FOR THAT MATTER, ITS CORREC TNESS. THE EVIDENCE, IT IS SEEN WAS AGAIN CONFRONTED TO THE AO BY TH E CIT(A). ON CONSIDERING THE EVIDENCES ON MERIT, THE AO ACCEPTED THAT THE DEPOSITS OF RS. 35,39,500/-, SUBJECT MATTER OF THE PRESENT APPEAL, WAS FOUND TO BE GENUINE AND ONLY THE AMOUNT OF RS. 1,10,500/- WAS FOUND T O BE NOT EXPLAINED. THE CIT(A) CONSIDERING THE REMAND REPORT VIDE LE TTER DATED 07.12.2011 EXTRACTED AT PAGE 12 OF HIS ORDER, GRANTED R ELIEF TO THE EXTENT THE DEPOSITS WERE EXPLAINED AND SUSTAINED THE ADDITION TO THE EXT ENT OF RS. 1,10,500/-. THE RELIEF GRANTED BY THE CIT(A) IS CHALLENGED IN APPEAL BY THE REVENUE. ITA-1193/2017 A.Y.2009-10 PAGE 5 OF 9 6.4 ON A PERUSAL OF THE IMPUGNED ORDER SPECIFICALLY PA RA 3.5 TO 3.6, I FIND THAT THE CIT(A) HAS GIVEN SUFFICIENT AND ADEQUATE REASO NS FOR ADMISSION OF FRESH EVIDENCE. THE SUFFICIENCY OF THE CAUSE IN T ERMS OF RULE 46A OF THE INCOME TAX ACT HAS BEEN DEMONSTRATED BY T HE ASSESSEE BY WAY OF DETAILED SUBMISSIONS EXTRACTED IN THE IMPUGNED ORDER N AMELY THAT THE ASSESSEE BEING ILLITERATE, DID NOT UNDERSTAND THE NOTICE BE ING IN A DIFFERENT VERNACULAR. THE REQUIREMENTS WERE UNDERSTOOD ONLY AFTE R MAKING AN ATTEMPT TO UNDERSTAND THE SAME ON MEETING THE AO BEFO RE WHOM IT WAS EXPLAINED THAT HE DID NOT HAVE ANY BANK ACCOUNT IN DOR AHA AND HIS BANK ACCOUNT WAS INFACT IN PAYAL. THE DEPOSITS WERE EXPLAINED AS SOURCED FROM SALE OF AGRICULTURAL LAND. SINCE THE SUPPORTING EVIDENCE WAS NOT FILED, THE ADDITIONS WERE MADE IN THE ASSESSMENT ORDER. IT IS NOTIC ED THAT THE VERY NEED FOR MAINTAINING A COPY OF THE SALE DEED WAS NOT UND ERSTOOD BY HIM, HE HAD TO MAKE ATTEMPTS TO PROCURE THE SAME INITIALLY FR OM THE PURCHASER AND FAILING THEREFROM, HE ULTIMATELY OBTAINED THE SAME BY AP PLYING TO THE SUB REGISTRAR. THUS, I FIND THAT SUFFICIENT CAUSE FOR ADMISS ION OF FRESH EVIDENCE HAS BEEN DEMONSTRATED BY THE ASSESSEE AND O N FACTS, THE CONCLUSION DRAWN BY THE CIT(A) IN PARA 3.5 AND 3.6 IS UPHELD. 7. ON MERITS, IT IS SEEN THAT AMOUNTS HAVE BEEN SATISFACT ORILY EXPLAINED BY THE ASSESSEE BEFORE THE AO IN THE REMAND P ROCEEDINGS BY WAY OF CLINCHING SUPPORTING EVIDENCES WHICH FACTS HAVE NOT BEEN ASSAILED. THE EVIDENCES RELIED UPON AND CONSIDERED HAVE NOT BEEN ASSAILED OR REBUTTED BY ANY CONTRARY EVIDENCE IN THE PRESENT PROC EEDINGS. IN THE CIRCUMSTANCES, I AM OF THE VIEW THAT THE OCCASION TO RAIS E A GROUND AGAINST THE RELIEF GRANTED DID NOT ARISE. IT IS UNFORTUNAT E THAT THE TAX AUTHORITIES DID NOT SEE THE PROCEEDINGS IN CONTINUATION O F THE PROCEEDINGS. A DIFFERENT MAN COMING AT A DIFFERENT POINT OF TIME, IT APPEARS MECHANICALLY HAS PROPOSED THE RAISING OF THE GROUND. IT IS SEEN THAT THE PRESENT APPEAL HAS BEEN FILED WITH THE APPROVAL OF THE ORD ERS DATED 21.07.2017 OF PR. CIT-2, LUDHIANA AND IT IS UNFORTUNATE THA T EVEN THE SAID AUTHORITY DID NOT CARE TO KEEP A CONTROL ON THE QUALITY OF THE APPEAL FILED. THE AO, WHO FILED THE REMAND REPORT, IS NOT NAMED. HOWEVE R, THE REMAND REPORT IS EXTRACTED IN THE IMPUGNED ORDER. ALTHOUGH, T HE NAME OF THE AO WHO HAS FILED THE PRESENT APPEAL IS GIVEN, HOWEVER THE FACT THAT THERE ARE CHECKS AND BALANCES IN PLACE TO ENSURE THAT FRIVOLOUS APP EALS ARE NOT FILED APPARENTLY ARE NOT WORKING. IT CANNOT BE OVER EMPHASIZ ED THAT EVERY TIME ITA-1193/2017 A.Y.2009-10 PAGE 6 OF 9 A FRIVOLOUS APPEAL IS FILED BY THE DEPARTMENT, NOT ONLY THE ENTIRE GOVT. MACHINERY COMES INTO PLAY BUT EVEN THE TAX PAYER IS UNN ECESSARILY REQUIRED TO DEFEND THE RELIEF GRANTED IN ACCORDANCE WITH LA W. IT IS UNFORTUNATE THAT THE TAX PAYER FOR NO FAULT OF HIS IS FORC ED TO ENGAGE A COUNSEL AND DEFEND THE RELIEF GRANTED WHICH HAS BEEN VER IFIED BY THE AO HIMSELF AS PER LAW. THE AO TO THE PUBLIC AT LARGE IS AN AU THORITY AND NOT A PERSON THUS, THE VIEW TAKEN BY THE SAID AUTHORITY IN REM AND PROCEEDINGS SHOULD NOT BE CASUALLY SOUGHT TO BE UPSET WITHOUT EVEN CARING TO R EBUT THE EVIDENCES RELIED UPON AND CONSIDERED. THE GOVERNMENT MACHINERY SHOULD BE PUT TO CONSTRUCTIVE USE AND NOT BE ALLOWED TO BE MEANINGLESSLY ABUSED BY FILING FRIVOLOUS APPEALS. THE CONTROLS PUT IN PLACE IT APP EARS, ARE ALSO MECHANICALLY IMPLEMENTED. THE PUBLIC MESSAGE WHICH GOES THR OUGH FILING OF SUCH APPEALS ERODES THE TRUST REPOSED IN THE AUTHOR ITIES TO ACT FAIRLY AND JUDICIOUSLY AND ALL OUT EFFORTS MUST BE MADE TO NIP TH IS EVIL IN THE BUD. 7.1 I AM AWARE THAT THE ITAT HAS THE POWERS TO IMPOS E COSTS, HOWEVER THE EXERCISE OF THE POWER IS REFRAINED FROM IN THE HOPE TH AT THE TAX ADMINISTRATION EFFECTIVELY INSTRUCTS THE ASSESSING OFFICERS TO EXERCISE THEIR DISCRETION FAIRLY AND JUDICIOUSLY IN NOT FILING APPEALS FRIVOLOUSLY. IT IS H OPED THAT A RELEVANT AND MEANINGFUL MECHANISM IS SET IN PLACE TO ENSURE THAT EFFICIENCY OF THE CONCERNED OFFICERS IS NOT GAUGED BY INSISTING ON MINDLESS ADHERENCE TO TARGETS BUT BY A QUALITATIVE ASSESSMENT OF THEIR WORK. THE MESSAGE HAS TO BE CLEARLY SENT THAT FILING OF APPEALS MINDLE SSLY WOULD BE VIEWED AND CONSIDERED TO BE AN ACT OF DERELICTION OF DUTY AND NOT HIGHER EFFICIENCY . FORCING THE TAX PAYER TO GO THROUGH THE TROUBLE OF E NGAGING A LAWYER AND INCURRING UNNECESSARY COSTS TO DEFEND A RELIEF GRANTED WHEREIN THE AO HAS ACCEPTED THE EVIDENCE IN THE REMAND REPORT GIVES RISE TO SEEDS OF STATE ALIENATION. SUCH CALLOUS AND CARELESS ACTIONS CAN CAUSE IRREPARABLE HAVOC IN THE FAITH OF THE CITIZENS. SUCH IRRESP ONSIBLE ACTS SEVERELY ERODE THE TRUST AND IMPLICIT FAITH WHICH THE TA X PAYER GENERALLY REPOSES IN THE OFFICE OF THE ASSESSING OFFICER TO ALWAYS ACT FAIRLY AND IMPARTIALLY IN A DEMOCRATIC INDIA. IT MAY BE APPROPRIATE TO HIGHLIGHT THE ASPECT OF THE ASSESSING OFFICER BY MAKING A REFERENCE TO THE DECISION OF THE APEX COURT IN CIT VS MR. P.FIRM (1965) 56 ITR 67 AND AS N OTICED BY THE DELHI HIGH COURT IN CIT VS SAM GLOBAL SECURITIES LTD. (2014) 3 60 ITR 682 (DELHI) AN OFFICER MUST NOT TAKE ADVANTAGE OF IGNORANCE OF THE ASSESSEE AS TO HIS RIGHTS, WHICH CAN BE EXTENDED TO ALSO MEAN AND INCLUDE THAT T HE AO ITA-1193/2017 A.Y.2009-10 PAGE 7 OF 9 MUST NOT FILE FRIVOLOUS APPEALS ABUSING HIS POSITION SO AS TO FORCE THE TAX PAYER TO ENGAGE COUNSEL TO DEFEND THE RELIEF. THE TAX ADM INISTRATION WORKS FOR THE GOVERNMENT OF INDIA AND CANNOT BE ALLOWED TO BE VIEWED AS AN AGENT OF AN ALIEN STATE WHICH WAS THE CASE OF PRE INDEPEN DENCE INDIA. THE APEX COURT HAS WELL ADDRESSED THE POSITION IN THE CA SE OF CIT VS MAHALAXMI SUGAR MILLS CO. LTD. (1986) 160 ITR 920 (S.C) THAT THERE IS A DUTY CAST ON THE ITO TO APPLY THE RELEVANT PROVISION O F THE ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF THE ASSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAX LIABILITY. REFERENCE MAY ALSO B E MADE TO THE ORDER DATED 10.01.2018 IN ITA 599/CHD/2017 IN THE CASE OF ITO VS RANDHIR SINGH, SIRHIND WITH THE FOLLOWING OBSERVATIONS : 4.2 IN THE AFORESAID FACTS AND CIRCUMSTANCES, THE OC CASION FOR THE AO TO FILE AN APPEAL DID NOT ARISE. IT IS NOTICED THAT FOR FILING THE PRESENT APPEAL, APPROVAL HAS BEEN GRANTED BY PR. CIT PA TIALA ON 15.03.2012. THERE CAN BE NO TWO OPINIONS TO HOLD THAT T HE APPROVAL ADMITTEDLY HAS BEEN GRANTED MECHANICALLY WHICH LEADS T O THE INDELIBLE CONCLUSION THAT THE ADMINISTRATIVE CHECKS A ND BALANCES PLACED BY THE DEPARTMENT IN PLACE FOR NOT FILING FR IVOLOUS APPEALS ADMITTEDLY ARE NOT WORKING. SINCE THE FACTS AND EVIDENCE S CONSIDERED IN THE REMAND PROCEEDINGS HAVE NOT BEEN REBUTTED BY THE AO IN THE PRESENT PROCEEDINGS, THE PRESENT APPEAL OUGHT NOT TO HAVE BEEN FILED. AS ONCE THE ISSUES HAVE BEEN GIVEN UP BY THE AO IN THE REMAND PROCEEDINGS, THE OCCASION TO RE-AGITATE THE VERY SAME ISSUE BY FILING AN APPEAL IN THE ABSENCE OF ANY REBUTTAL ON FACTS AND EVIDENCES CAN BE EASILY SAID TO BE NOT ONLY AN IRRESPONSIBLE CRIMIN AL WASTE OF GOVERNMENT TIME, MONEY AND RESOURCES BUT ALSO GIVES RI SE TO THE LATENT RESENTMENT IN PUBLIC CONSCIOUSNESS THAT THE TAX AUTHORITIES ARE CALLOUSLY HEEDLESS AND UNCARING VIS--VIS THE PAIN AND H ARASSMENT CAUSED BY SUCH OBDURATE ACTS TO THE PUBLIC WHOM THE Y ARE PRESUMED TO SERVE. THE AO ONCE SATISFIED IN THE REMAND PROCE EDING CANNOT BE SAID TO BE AGGRIEVED BY THE ORDER PASSED BY THE CIT (A) CONSIDERING HIS OWN REMAND REPORT. IT NEED NOT BE OVER EMPHASIZED THAT AS FAR AS THE WORLD AT LARGE IS CONCERNED, THE ASSESSING OFFICE R IS AN AUTHORITY AND IS NOT A SPECIFIC PERSON. THUS, MERELY ON ACCOUNT OF CHANGE OF THE AO, PRESUMABLY THE INCUMBENT CANNOT BE ALLOWED TO FILE A PPEALS WILLY NILLY. SUCH RAMPANT CARELESS BEHAVIOUR SHAKES THE PUBL IC TRUST AND FAITH REPOSED IN THE AUTHORITY OF THE AO TO ACT FAIR LY AND IMPARTIALLY. IT WOULD NOT BE OUT OF CONTEXT TO QUOTE FROM THE DECISI ON OF THE APEX COURT IN THE CASE OF CIT VS MAHALAXMI SUGAR MILLS CO. LTD. (1986) 160 ITR 920 (S.C) THERE IS A DUTY CAST ON THE ITO TO APPLY THE RELEVANT PROVISION OF THE ACT FOR THE PURPOSE OF DET ERMINING THE TRUE FIGURE OF THE ASSESSEES TAXABLE INCOME AND THE CONSE QUENTIAL TAX LIABILITY. IT WOULD NOT BE OUT OF PLACE TO EXTEND THI S THAT SO AS TO ALSO MEAN THAT IT IS ALSO THE DUTY OF THE ASSESSING OFFICE R TO FILE APPEALS ONLY IF THE AO IS AGGRIEVED BY THE FINDING. THE CONC LUSION ARRIVED AT ON CONSIDERING HIS OWN REMAND REPORT CANNOT BE SUCH AN INSTANCE UNLESS THE FACTS CONSIDERED ARE ASSAILED AS INCORRECT FACTS. IT IS FOR THIS SPECIFIC REASON THAT CHECKS AND BALANCES HAVE BEEN ADMITTEDLY PLACED ON RECORD REQUIRING THAT BEFORE THE FILING O F APPEAL IS PERMITTED TO THE AO, THE APPROVAL OF PR. CIT IS NECESSARY. THE SA ID EXERCISE HAS ITA-1193/2017 A.Y.2009-10 PAGE 8 OF 9 A MEANINGFUL PURPOSE AS IT NOT ONLY ENURES THE TAX PA YER FROM DEFENDING FRIVOLOUS APPEALS BUT EVEN OTHERWISE ENSURE S THAT THE GOVERNMENT TIME, MONEY AND FUNDS ARE NOT FRIVOLOUSLY F RITTERED. REFERENCE MAY ALSO BE MADE TO THE ORDER DATED 04.01.2018 IN ITA 424/CHD/2017 IN THE CASE OF ITO VS SHRI JAGDEV SING H : 7. THOUGH THE ITAT HAS THE POWERS TO IMPOSE COSTS, HOWEVER THE EXERCISE OF THE POWER IS REFRAINED FROM. HOWEVER, IT IS HOPED THAT THE ADMINISTRATION VIGOROUSLY ENSURES THAT THE OFFICERS ARE ADVISED AND INSTRUCTED TO EXERCISE THEIR DISCRETION FAIRLY AND JUDICIOUSLY IN NOT FILING APPEALS FRIVOLOUSLY. IT IS NOTED THAT THE A DMINISTRATIVE CHECKS AND BALANCES PUT IN PLACE BY THE DEPARTMENT FOR ENS URING THAT FRIVOLOUS APPEALS ARE NOT FILED, DO NOT APPEAR TO B E WORKING. CARE SHOULD HAVE BEEN TAKEN TO NOTE THAT THE ISSUE HAD B EEN GIVEN UP IN THE REMAND PROCEEDINGS BY THE AO. IN THESE IN THE CIRCUMSTANCES, WITHOUT ASSAILING THE FACTS AND EVIDENCES, APPEAL S HOULD NOT HAVE BEEN FILED MECHANICALLY. IT IS SEEN THAT THE PRESEN T APPEAL HAS BEEN FILED WITH THE APPROVAL OF PR. CIT-2 LUDHIANA. IT NOT ONLY DEMONSTRATES THAT THE APPROVAL HAS BEEN GIVEN MECHA NICALLY, IT ALSO ERODES THE TRUST REPOSED BY THE TAX PAYER IN THE FA IRNESS OF THE ADMINISTRATION. FILING OF SUCH FRIVOLOUS APPEALS R EFLECTS POORLY ON THE DEPARTMENTAL MINDSET AND GIVES UNWANTED STRENGTH TO THE EVER INCREASING CYNICAL BELIEF THAT THE ADMINISTRATIVE S ET UP WORKS MINDLESSLY CHALLENGING ANY AND EVERY RELIEF GRANTED BY AN AUTHORITY IN ACCORDANCE WITH LAW. STILL MORE NEEDS TO BE DON E TO REIGN IN THE DESIRE TO SHOW HIGHER EFFICIENCY BY CONCERNED OFFIC IALS BY FILING A HIGHER NUMBER OF APPEALS. THE MINDLESS ADHERENCE T O TARGETS CAN CAUSE IRREPARABLE HAVOC IN THE FAITH OF THE CITIZEN S IN THE ADMINISTRATIVE SET UP WHICH SHOULD BE AVOIDED AND O BHORED AT ALL COSTS. A POSITIVE AFFIRMATIVE ATMOSPHERE MAY NEED TO BE CREATED ENCOURAGING THE CONCERNED OFFICIALS TO BLOOM IN A F EARLESS ATMOSPHERE OF TRUST AND CONFIDENCE IN THEIR FUNCTIONING BALANC ED WITH CLEAR AND UNAMBIGUOUS INSTRUCTIONS THAT FILING OF FRIVOLOUS A PPEALS SHALL BE VIEWED STRICTLY AND NEGATIVELY. THE MESSAGE HAS TO BE CLEARLY SENT THAT FILING OF APPEALS MINDLESSLY WOULD BE VIEWED A ND CONSIDERED TO BE AN ACT OF INEFFICIENCY OR DERELICTION OF DUTY AND NOT HIGHER EFFICIENCY . FORCING THE TAX PAYER TO GO THROUGH THE TROUBLE O F ENGAGING A LAWYER AND INCURRING UNNECESSARY COSTS T O DEFEND A RELIEF GRANTED WHEREIN THE AO HAS UNAMBIGUOUSLY ACCEPTED T HE EVIDENCE IN THE REMAND REPORT GIVES RISE IN THE PUBLIC MIND TO SEEDS OF STATE ALIENATION. SUCH AN ACT SEVERELY ERODES THE TRUST AND IMPLICIT FAITH WHICH THE TAX PAYER GENERALLY REPOSES THE ASSESSING OFFICER TO ALWAYS ACT FAIRLY AND IMPARTIALLY IN A DEMOCRATIC I NDIA. THE TAX ADMINISTRATION WORKS FOR THE GOVERNMENT OF INDIA AN D CANNOT BE ALLOWED TO BE VIEWED AS AN AGENT OF AN ALIEN STATE WHICH WAS THE CASE OF PRE INDEPENDENCE INDIA. 5. IN THE FACTS AS THEY STAND, THE DEPARTMENTAL APPEA L IS DISMISSED. 7.2 WHILE SO DIRECTING, IT WOULD NOT BE OUT OF PLACE TO ALSO SUGGEST THAT ADEQUATE EFFORTS ARE MADE TO INFORM THE PUBLIC THAT DOCUM ENTS HAVING FINANCIAL IMPLICATIONS LIKE COPIES OF SALE DEED ETC. ARE RETAINED EVEN BY THE SELLER IN ORDER TO AVOID UNNECESSARY HARASSMENT OF TRACIN G THEM TO SUBSTANTIATE THE AVAILABILITY OF FUNDS WHICH IS BOUND TO BE Q UESTIONED BY THE TAX ADMINISTRATION. IT IS NOTED THAT AS A RESULT OF DE VELOPMENTAL ACTIVITIES OF THE STATE, THE FRUITS OF DEVELOPMENT HAVE DEVELOPED ON AT T IMES ITA-1193/2017 A.Y.2009-10 PAGE 9 OF 9 ON TEAMING MASSES WHO EDUCATIONALLY, SOCIALLY AND FINANCIALLY WERE ILL PREPARED TO HANDLE THE BONANZA. THESE INCIDENTS HAVE SU DDENLY ATTRACTED THE ILL PREPARED CITIZENS IN THE TAX NET WHO ON ACCOUNT O F THEIR IGNORANCE ARE LEFT BATTLING THEIR GAIN AND GOOD FORTUNE IN THE MIND LESS MAZE OF THE ADMINISTRATIVE REQUIREMENTS. IT HAS BEEN MY EXPERIENCE ON BEING FACED WITH THE HELPLESSNESS EXHIBITED BY THESE ASSESSEES IN APP EALS THAT VALIANT AND CONCERTED EFFORTS ARE NECESSARILY REQUIRED TO BE DO NE BY THE TAX ADMINISTRATION BY RECRUITING AND SENSITIZING OFFICERS WHO DISSE MINATE KNOWLEDGE, INFORMATION AND CREATE AWARENESS BY HAVING A M EANINGFUL DIALOGUE WITH THESE RELUCTANT TAX PAYERS. EFFORTS OF BR OADCASTING OF INFORMATION THROUGH AUDIO VISUAL MEANS ETC MUST ENSURE PE RCOLATION OF INFORMATION, AWARENESS AND EDUCATION RIGHT DOWN TO THE GR ASS ROOTS TO PREPARE THE CITIZENS TO HANDLE THEIR FINANCIAL SUCCESSES AN D FAILURES AS THESE EFFORTS WOULD GO A LONG WAY TO HELP THE PEOPLE TO B ECOME TAX COMPLIANT. WITH THE SAID OBSERVATIONS, THE APPEAL OF THE R EVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.01. 2018. 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.