Sh. Kabir Sodhi, Chandigarh V. ACIT, CC-II, Chandigarh

ITA 1300/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1072 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 12-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !'#,$!%'. .. . , )*!% BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 1300/CHD/2018 / ASSESSMENT YEAR : 2011-12 SHRI KABIR SODHI, # 1620, SECTOR 18D, CHANDIGARH. VS THE A.C.I.T . , CENTRAL CIRCLE-II, CHANDIGARH. ./ PAN NO: CJMPS9872F / APPELLANT / RESPONDENT & ./ ITA NO. 1301/CHD/2018 / ASSESSMENT YEAR : 2012-13 SHRI KABIR SODHI, # 1620, SECTOR 18D, CHANDIGARH. VS THE D.C.I.T . , CENTRAL CIRCLE-II, CHANDIGARH. ./ PAN NO: CJMPS9872F / APPELLANT / RESPONDENT / REVENUE BY : SHRI TEJ MOHAN SINGH, ADV. / ASSESSEE BY : SHRI ASHISH GUPTA, CIT(DR) # / DATE OF HEARING : 18.03.2019 # / DATE OF PRONOUNCEMENT : 20/03.2019 / ORDER PER DIVA SINGH THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE SEPARATE ORDERS DATED 29.6.2018 OF T HE CIT(A)-3, GURGAON PERTAINING TO 2011-12 AND 2012-13 ASSESSMENT YEARS ON DIFFERENT GROUNDS INCLUDING GROUND NO.1, WHICH IS BEING ADJUDIC ATED UPON IN THE PRESENT PROCEEDINGS, WHICH REMAINS IDENTICAL IN BOTH THE YEARS. FOR READY REFERENCE, GROUND NO.1 IN ITA NO.1300/CH D/2018 IS REPRODUCED HEREUNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW IN DISMISSING THE APPEAL EX-PARTE WITH OUT AFFORDING AN OPPORTUNITY OF HEARING WHICH IS AGAINS T THE ITA 1300 & 1301/CHD//2018 A.Y. 2011-12 & 2012-13 PAGE 2 OF 3 PRINCIPALS OF NATURAL JUSTICE AND AS SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2. BEFORE ADDRESSING THE ISSUE RAISED IN THE APPEAL, IT IS A PPROPRIATE TO ADDRESS THE FACT THAT THE ASSESSEE HAD MOVED AN A DJOURNMENT APPLICATION SEEKING TIME TO FILE A PAPER BOOK TO ADDRESS TH E ISSUES RAISED IN THE PRESENT APPEAL. CONSIDERING THE FACT THAT TH E IMPUGNED ORDER IS AN EX-PARTE ORDER WHERE THE ASSESSEE FAILED TO APPEAR, IT WAS DEEMED APPROPRIATE TO REJECT THE ADJOURNMENT APPLICATION AN D PASS OVER THE APPEAL IN ORDER TO DECIDE GROUND NO.1 RAISED IN THE P RESENT APPEALS. THE LD. AR REFERRING TO THE ORDERS, SUBMITTED THAT THE A SSESSEES APPEALS WERE DISMISSED BY THE CIT(A) FOR NON-REPRESENTATIO N AS ON THE DATES MENTIONED IN PARA 3.1 OF HIS ORDER, THE ASSESSEE DID NOT PARTICIPATE. THE LD. AR SUBMITTED THAT THE ADDRESS OF TH E ASSESSEE IS CORRECT. HOWEVER, THE ASSESSEE MAY NOT HAVE RECEIVED N OTICES FOR THE SPECIFIC DATE. A PERUSAL OF THE ORDER SHOWS THAT THE CASE WAS FIXED FOR HEARING ON 8.5.2018, 15.6.2018 AND 27.6.2018. HOWEVER, THERE IS NO MENTION AS TO HOW NOTICE WAS STATED TO HAVE BEEN SENT . IN THESE CIRCUMSTANCES, ACCEPTING THE ORAL PRAYER OF THE LD. AR A ND HIS UNDERTAKING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PR OCEEDINGS, IT IS DEEMED APPROPRIATE TO RESTORE THE ISSUE BACK AFTER HEA RING THE LD.CIT DR. HOWEVER, THE LD. AR SUBMITTED THAT A PERUSAL OF THE ASSESSMENT ORDER WOULD ALSO SHOW THAT EVEN IN THE ASSESSMENT PROC EEDINGS, THE ASSESSEE COULD NOT PLACE NECESSARY EVIDENCES ON RECORD , ON ACCOUNT OF WHICH EVIDENCES THE ASSESSEE SEEKS TO FILE FRESH EVIDENCES WHICH WOULD NEED TO BE VERIFIED BY THE A.O. IN THESE CIRCUMSTANCES, IT WAS HIS PRAYER THAT THE ISSUE MAY BE REMANDED TO THE A.O. THE LD. CIT DR, ON GOING THROUGH THE ASSESSMENT ORDER, SUBMITTED THAT DESPITE O PPORTUNITY, THE ASSESSEE FAILED TO PLACE THE EVIDENCES ON RECORD BEFORE THE A.O. AND THE EVIDENCES WOULD NEED TO BE VERIFIED BY THE A.O. HOWEVER, IT WAS HIS SUBMISSIONS THAT ONLY ACCEPTING THE LD. ARS UNDERTAKING THAT THE ASSESSEE SHALL NOT ABUSE THE TRUST, THE ORDER MAY BE REMANDED. 3. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES ADMITTEDLY, SPECIFIC OPPORTUNITY WAS PROVIDED BY THE A.O. IN THE APPELLATE PROCEEDINGS, WE NOTE THAT THE DATES OF HEARING HAD BEEN MENTIONED. HOWEVER, THE MODE OF COMMUNICATING THE S AME TO THE ASSESSEE IS NOT FOUND DISCUSSED. FURTHER TAKING NOTE OF T HE IMPUGNED ITA 1300 & 1301/CHD//2018 A.Y. 2011-12 & 2012-13 PAGE 3 OF 3 ORDER IT IS SEEN THAT IT HAS BEEN DISMISSED ON THE GROU NDS OF NON- REPRESENTATION, RELYING UPON THE DECISION OF THE HON'BLE A PEX COURT IN THE CASE OF B.N. BHATTACHARGEE & OTHER, 188 ITR 461 (S C). CONSIDERING THE SAME WE FIND THAT THE PROCEDURE FOLLOWED BY THE LD.C IT(A) IS NOT AS PER THE STATUTORY MANDATE, AS SET OUT IN SUB-SECTION(6) OF SECTION 250 OF THE INCOME TAX ACT, 1961. FURTHER TAKING NOTE OF THE FAC T THAT THE NECESSARY EVIDENCE IS TO BE CONSIDERED BY THE A.O., ACCOR DINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, AC CEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR, THE IMPUGNED ORDERS ARE SET ASIDE AND THE ISSUES ARE REMANDED BACK TO THE FILE OF THE A.O. WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW . NEEDLESS TO SAY THAT AN EFFECTIVE AND REASONABLE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE. WHILE SO DIRECTING, IT IS MADE C LEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED ON THE ASSESS EE, THE A.O. SHALL BE FREE TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIM E OF HEARING ITSELF. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MARCH, 2019. SD/- SD/- ( . . . . ) ( !'# ) (DR. B.R.R. KUMAR) (DIVA SINGH) !% / ACCOUNTANT MEMBER $ !% / JUDICIAL MEMBER * * %()) *+),+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ) ! - / CIT 4. ) ! - ) ( )/ THE CIT(A) 5. +./)) 0 , )#)0 , 123/4 / DR, ITAT, CHANDIGARH 6. /3)5' / GUARD FILE %( ! / BY ORDER, ) / ASSISTANT REGISTRAR