Dinesh Singh, Panchkula V. ITO, Panchkula

ITA 1195/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73524 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: S K BHASIN
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.1194 & 1195 /CHD/2013 ASSESSMENT YEARS : 2007-08 & 2008-09 [ORDER U/S 271(1)(C)] AND ITA NOS.1196 & 1197 /CHD/2013 ASSESSMENT YEARS : 2007-08 & 2008-09 [ORDER U/S 144] DINESH SINGH, VS. THE INCOME TAX OFFICER, HOUSE NO.205, GH-2, WARD-3, SECTOR 24, PANCHKULA. PANCHKULA. PAN: BFTPS8417J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.BHASIN RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 24.02.2014 DATE OF PRONOUNCEMENT : 25.02.2014 O R D E R PER SUSHMA CHOWLA, J.M. : THIS BUNCH OF FOUR APPEALS FILED BY THE ASSESSEE AR E AGAINST THE TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS), PANCHKULA, EACH DATED 01.04.2013, RELATING TO ASSES SMENT YEARS 2007-08 AND 2008-09 AGAINST THE ASSESSMENT FRAMED UNDER SEC TION 144 OF THE ACT AND PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2 2 . ALL THE FOUR APPEAL RELATING TO THE SAME ASSESSEE W ERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITA NO.1194 & 1195/CHD/2013 : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 2. THE LEARNED AO HAS ERRED IN LEVYING PENALTY OF RS.46,64,500/-(RS.17,24,819/- IN ITA NO.1195/CHD/2013,) BY INVOKING PROVISIONS OF SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE LD. CIT(A) HAS ERRED IN UPHOLDING PENALTY LEVIED BY LD. ASSESSING OFFICER OF RS.46,64,500/-( IN ITA NO.1195/CHD/2013, RS.17,24,819/-) BY INVOKING PROVISIONS OF SECTION 144 OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITA NO.1196 & 1197/CHD/2013 : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 2. THE LEARNED AO HAS ERRED IN MAKING ADDITION OF RS.13,885,863/-(RS.51,05,681/- IN ITA NO.1197/CHD/2013,) BY INVOKING PROVISIONS OF SECTION 144 OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE LD. CIT(A) HAS ERRED IN UPHOLDING ADDITION MADE BY LD. ASSESSING OFFICER OF 13,885,863/- (RS.51,05,681/- IN ITA NO.1197/CHD/2013,) BY INVOKING PROVISIONS OF SECTION 144 OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. 3 5. THE APPEALS RELATING TO ASSESSMENT YEARS 2007-0 8 AND 2008-09 WERE FILED AFTER A DELAY OF 24 DAYS . THE LEARNED A.R. FOR THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY I N FILING THE APPEALS BELATEDLY BEFORE THE TRIBUNAL. IT WAS THE CONTENT ION OF THE ASSESSEE THAT BECAUSE OF PAUCITY OF FUNDS THE APPEAL FEE COULD NO T BE PAID AND THE ASSESSEE WAS NOT KEEPING GOOD HEALTH AND HENCE THE DELAY OF 24 DAYS IN FILING THE APPEALS. IN THE ENTIRETY OF FACT AND CI RCUMSTANCES, WE CONDONE THE DELAY OF 24 DAYS AND PROCEED TO DECIDE THE APPE AL. 6. ALL THE APPEALS ON THE QUANTUM ADDITION WERE DEC IDED BY THE ASSESSING OFFICER VIDE SEPARATE ORDERS PASSED UNDER SECTION 144 OF THE ACT DATED 29.12.2009 AND 16.12.2010. THE PLEA OF T HE ASSESSEE BEFORE US WAS THAT INITIALLY THERE WAS CHANGE IN ADDRESS AND SOME OF THE NOTICES COULD NOT BE SERVED UPON THE ASSESSEE. THEREAFTER THE ASSESSEE COULD NOT PUT IN APPEARANCE BEFORE THE ASSESSING OFFICER BECA USE OF HIS ILL HEALTH. THE ASSESSMENT ORDERS WERE PASSED BY THE ASSESSING OFFICER IN THE ABSENCE OF INFORMATION/DETAILS BEING FILED BY THE A SSESSEE. 7. THE CIT (APPEALS) ON THE OTHER HAND, DISMISSED T HE APPEALS OF THE ASSESSEE FOR NON-APPEARANCE ON DIFFERENT DATES OF H EARING. THE APPEAL WERE DISMISSED IN LIMINE WITHOUT ADJUDICATING UPON THE MERITS OF THE ISSUES RAISED BY THE ASSESSEE. FURTHER THE APPEALS BEFORE THE CIT (APPEALS) WERE ALSO FILED BELATEDLY AND IN THE ABSE NCE OF ANY CONDONATION APPLICATION THE APPEALS WERE DISMISSED. 8. THE ASSESSEE IS IN APPEAL AGAINST THE CONSOLIDAT ED ORDERS PASSED BY THE CIT (APPEALS) IN THE QUANTUM PROCEEDINGS AND TH E FIRST GRIEVANCE OF THE ASSESSEE IS THAT REASONABLE OPPORTUNITY OF BEIN G HEARD HAS NOT BEEN PROVIDED. 4 9. SHRI S.K.BHASIN APPEARED FOR THE ASSESSEE AND SH RI MANJIT SINGH PUT IN APPEARANCE ON BEHALF OF THE REVENUE AND PUT FORWARD THEIR CONTENTIONS. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE BEFORE US IS AGGRIEVED BY THE ORDERS OF TH E ASSESSMENTS PASSED EX-PARTE UNDER SECTION 144 OF THE ACT RELATING TO A SSESSMENT YEARS 2007- 08 AND 2008-09. THE PERUSAL OF THE ASSESSMENT ORDE RS REFLECTS VARIOUS OPPORTUNITIES BEING AFFORDED TO THE ASSESSEE. HOWE VER, THERE WAS NON- APPEARANCE ON BEHALF OF THE ASSESSEE IN ASSESSMENT YEARS 2007-08 AND 2008-09 ALSO. THE NOTICE OF HEARING REMAINED UN-CO MPLIED WITH AND EVEN PENALTY OF RS.30,000/- WAS LEVIED UPON THE ASS ESSEE U/S 271(1)(B) OF THE ACT IN ASSESSMENT YEAR 2008-09. IN VIEW OF THE SAME, THE ASSESSMENTS WERE COMPLETED UNDER SECTION 144 OF THE ACT. THE LEARNED A.R. FOR THE ASSESSEE HAD PLEADED THAT SOME OF THE NOTICES OF HEARING WERE NOT SERVED UPON THE ASSESSEE AS SOME WERE SENT TO HIS OLD ADDRESS AND IN RESPECT OF THE OTHER NOTICES, THERE WAS CERT AIN CONSTRAINTS BECAUSE OF WHICH THE ASSESSEE COULD NOT APPEAR BEFORE THE A SSESSING OFFICER. THE APPEALS BEFORE THE CIT (APPEALS) WERE ALSO DISM ISSED AS THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT (APPEALS) DESPITE SERVICE OF VARIOUS NOTICES OF HEARING. THE CIT (APPEALS) FAIL ED TO ADDRESS THE ISSUES RAISED ON MERITS. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND FOLLOWING THE PRINCIPLES OF NATURAL JUSTI CE, WE ARE OF THE VIEW THAT ANOTHER OPPORTUNITY OF HEARING MAY BE ALLOWED TO THE ASSESSEE TO PUT FORWARD HIS CONTENTION BEFORE THE ASSESSING OFFICER IN RELATION TO VARIOUS ISSUES RAISED AGAINST HIM. IN THE INTEREST OF JUSTICE, WE REMIT THE PROCEEDINGS BACK TO THE FILE OF THE ASSESSING OFFIC ER, WHO SHALL COMPLETE THE ASSESSMENT DE-NOVO AFTER AFFORDING REASONABLE O PPORTUNITY OF HEARING. THE ASSESSEE IS ALSO DIRECTED TO COMPLY W ITH NOTICES ISSUED BY 5 THE ASSESSING OFFICER WITHIN THE TIMEFRAME GIVEN TO HIM FOR ADJUDICATING THE ISSUES ON MERITS. 11. THE APPEALS IN ITA NOS.1194 & 1195/CHD/2013 REL ATE TO PENALTY LEVIED U/S 271(1)(C) OF THE ACT. IN VIEW OF OUR SE TTING ASIDE THE ASSESSMENT BACK TO THE FILE OF THE ASSESSING OFFICE R, THE PRESENT PENALTY LEVIED U/S 271(1)(C) OF THE ACT DO NOT SURVIVE. HO WEVER, THE ASSESSING OFFICER IS AT LIBERTY TO INITIATE PENALTY PROCEEDIN GS, IF REQUIRED, AFTER COMPLETION OF ASSESSMENT IN THE HANDS OF THE ASSESS EE. CONSEQUENTLY, THE GROUNDS OF APPEAL IN ITA NOS.1194 & 1195/CHD/20 13 ARE ALLOWED AND THE GROUNDS OF APPEAL IN ITA NOS.1196 & 1197/CHD/20 13 ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NOS.1194 & 1195/CHD/2013 ARE ALLOWED AND THE APPEALS IN ITA NO S.1196 & 1197/CHD/2013 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25 TH FEBRUARY, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6