Sh. Sanjiv Sharma, Chandigarh V. ITO, Chandigarh

ITA 1226/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68606 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Additional evidence
• Section: 143(3)

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 NO.1226/CHD/2012 ASSESSMENT YEAR : 2009-10 SHRI SANJIV SHARMA, VS THE INCOME TAX OFFICER, SCO 360, IST FLOOR, WARD 4(4), SECTOR 32D, CHANDIGARH. CHANDIGARH. PAN : ABZPS-4750K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI J.S.NAGAR DATE OF HEARING : 03.12.2013 DATE OF PRONOUNCEMENT : 23.12.2013 O R D E R PER SUSHMA CHOWLA, JM THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS) CHANDIGARH DATED 03.09.2012 RELATING T O ASSESSMENT YEARS 2009-10 AGAINST THE ORDER PASSED UNDER SECTION 143( 3) OF THE INCOME-TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEA L BUT THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IS VIDE GROUND OF APPE AL NO. 1 WHICH READS AS UNDER : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE WORTHY CIT(APPEALS) IN APPEAL NO. 769/11-12 DAT ED 03.09.2012 HAS ERRED IN PASSING THAT ORDER IN CONTR AVENTION OF THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT,1961. 3. DURING THE COURSE OF HEARING, THE ASSESSEE HAD M OVED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE WHICH HAS BEEN WITHDRAWN BY THE ASSESSEE. 2 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 807,140/-. TH E ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROPERTY CONSULTANCY AND WAS ALS O RECEIVING SHARE OF PROFIT AND SALARY FROM THE PARTNERSHIP FIRM. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE A SSESSEE WAS MAINTAINING BANK ACCOUNTS AND ICICI BANK, PUNJAB NATIONAL BANK AND BANK OF INDIA. THE ASSESSING OFFICER HAD RECEIVED CERTAIN INFORMAT ION FROM AIR. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTM ENT IN THE SAID BANK ACCOUNTS. THE ASSESSEE WAS UNABLE TO FURNISH THE R EPLY BEFORE THE ASSESSING OFFICER THOUGH VARIOUS ADJOURNMENTS WERE SOUGHT BY THE ASSESSEE. IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE, SUM OF RS. 75,73,500/- DEPOSITED IN THE BANK BY THE ASSESSEE WAS CONSIDERE D AS INVESTMENT MADE FROM UNDISCLOSED SOURCES AND THE SAME WAS ADDED AS INCOME OF THE ASSESSEE. FURTHER ADDITION WAS MADE ON ACCOUNT OF LOAN RECEIV ED FROM SHRI INDRESH SAHNI OF RS. 15,00,000/- AND SHRI TILAK RAJ KHETERP AL OF RS. 20,00,000/-. THE ASSESSEE WAS UNABLE TO EXPLAIN THE GENUINENESS OF THE SAID ENTRIES AND CONSEQUENTLY, IT WAS ADDED BACK TO THE INCOME OF TH E ASSESSEE UNDER SECTION 69A OF THE ACT. 4. THE CIT(APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE BECAUSE OF NON APPEARANCE BY THE LD. AR FOR THE ASSESSEE. THE ASSESSEE HAS FAILED TO EVEN FURNISH WRITTEN SUBMISSIONS BEFORE THE CIT(APP EALS). CONSEQUENTLY, THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE UP HELD BY THE CIT(APPEALS). 5. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE WAS BEING REPRESENTED BY ONE SHRI DINESH GOYAL, ITP ON DAY-TO DAY BASIS. HOWEVER, ON THE LAST DATE OF HEARING I.E. 02.01.2011, THE COUNS EL FELL ILL AND COULD NOT APPEAR ON THE APPOINTED DATE BUT APPEARED AFTER A G AP OF 2 TO 3 DAYS. AS PER THE ASSESSEE, THE ASSESSING OFFICER REFUSED TO ENTE RTAIN THE SAID DOCUMENTS 3 BUT ON INSISTENCE, THE DOCUMENTS COULD BE PLACED BE FORE THE ASSESSING OFFICER. HOWEVER, NO ENTRY WAS MADE IN THE ORDER-S HEET IN THIS REGARD. THE LAST DATE OF HEARING FIXED IN THE CASE WAS 02.11.20 11 AND THE ASSESSMENT ORDER WAS PASSED ON 23.12.2011 AND WITHOUT LOOKING INTO THE INFORMATION AND DOCUMENTS SUPPLIED BY THE ASSESSEE. THE CIT(APP EALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN VIEW OF NON-APPEARANC E BEFORE THE CIT(APPEALS). 6. SHRI PARIKSHIT AGGARWAL APPEARED FOR THE ASSESSE E AND SHRI J.S.NAGAR APPEARED FOR THE REVENUE AND PUT FORWARD THEIR CONT ENTIONS. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSMENT IN THE CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT. HOWEVER, THERE WAS NON-APPEARANCE BEFORE THE ASSESS ING OFFICER ON THE LAST DATE OF HEARING BECAUSE OF ILLNESS. CERTAIN DOCUME NTS WERE HANDED OVER TO THE ASSESSING OFFICER AND THE ASSESSEE HAS PLACED O N RECORD THE COPIES OF THE LETTER DATED 28.11.2011 IN THIS REGARD POINTING OUT THAT BOTH THE BANK STATEMENT OF ICICI BANK AND PUNJAB NATIONAL BANK WE RE FILED DURING THE ASSESSMENT PROCEEDINGS. FURTHER PLEA OF THE ASSESS EE WAS THAT IN THE ABOVESAID FACTS AND CIRCUMSTANCES, THERE WAS NO MER IT IN THE EX-PARTE ORDER PASSED BY THE CIT(APPEALS). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 250 OF THE ACT, PROCEDURE UNDER APPEAL BEFORE THE CIT(APPEALS) IS ENLISTED UNDER WHICH IT IS INCUMBEN T UPON THE CIT(APPEALS) TO GIVE REASONABLE HEARING TO THE APPELLANT AS ALSO THE ASSESSING OFFICER. THE CIT(APPEALS) IS ALSO EMPOWERED TO MAKE FURTHER ENQUIRIES AS HE DEEMS FIT OR HE MAY DIRECT THE ASSESSING OFFICER TO MAKE FURTHER ENQUIRIES AND REPORT RESULT OF THE SAME TO THE CIT(APPEALS). UND ER SECTION 250(5) OF THE ACT, THE CIT(APPEALS) IS ALSO EMPOWERED TO HEAR ADD ITIONAL GROUNDS OF APPEAL WHICH ARE NOT SPECIFIED IN THE GROUND OF APP EAL FILED BY THE ASSESSEE. 4 UNDER SUB-SECTION (6) TO SECTION 250 OF THE ACT, IT IS PROVIDED THAT THE ORDER OF THE CIT(APPEALS) DISMISSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION TH EREON AND THE REASONS FOR THE DECISION. 9. IN THE FACTS OF THE PRESENT CASE, WE FIND MERIT IN THE PLEA OF THE ASSESSEE THAT THE CIT(APPEALS) HAS ERRED IN PASSING THE ORDER WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND WITHOUT CONSIDERING THE ISSUE RAISED. THE CIT(APPEALS) IS DIRECTED TO CONSIDER THE EVIDENCE AVAILABLE WITH THE ASSESSEE IN RESPECT OF THE VARIO US ISSUES RAISED, BEFORE ADJUDICATING THE SAME AND ALSO TO TAKE INTO CONSIDE RATION THE DOCUMENTS FILED BEFORE THE ASSESSING OFFICER WHICH IN-TURN WE RE NOT CONSIDERED BY THE ASSESSING OFFICER. IF NECESSARY, THE CIT(APPEALS) M AY CALL FOR REMAND REPORT TO ADJUDICATE THE ISSUES RAISED IN THE PRESENT CASE . ACCORDINGLY, WE REMIT THE PRESENT APPEAL BACK TO THE FILE OF CIT(APPEALS) WITH THE DIRECTION TO ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSE SSEE AND TO DECIDE THE ISSUE ON MERITS, TAKING INTO CONSIDERATION THE VARI OUS DOCUMENTS/EVIDENCES AVAILABLE WITH THE ASSESSEE. THE GROUND OF APPEAL NO. 1 RAISED BY THE ASSESSEE IS THUS, ALLOWED FOR STATISTICAL PURPOSES. 10. IN VIEW OF OUR SETTING ASIDE THE ISSUE BACK TO THE FILE OF CIT(APPEALS) WE ARE NOT ADDRESSING THE ISSUES RAISED ON MERITS O F THE PRESENT APPEAL. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DECEMBER,2013. SD/- SD/- ( T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 23 RD DECEMBER,2013 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR ITAT,CH D.