Hemant Kumar Popli, Shimla V. DCIT, Chandigarh

ITA 1397/CHANDI/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9315 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 1397/CHD/2016 ASSESSMENT YEAR : 2012-13 SHRI HEMANT KUMAR POPLI, HEMANT LODGHE, NAV BAHAR, SHIMLA. VS THE DCIT, CENTRAL CIRCLE-II, CHANDIGARH. PAN /TAN NO: AIAPP6983B APPELLANT RESPONDENT ! ASSESSEE BY : SHRI VISHAL MOHAN, ADVOCATE ' ! REVENUE BY : SMT. CHANDERKANTA # $ % DATE OF HEARING : 03.07.2019 &'() % D ATE OF PRONOUNCEMENT : 05.07.2019 )-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 28.10.2018 OF CIT(A) -3 GURGAON HAS BEEN ASSAILED ON THE FOLLOWING GROUNDS : 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS 12,22,501/- TREATING THE PURCHASES MADE BY THE ASSESSEE AS BOGUS AND THEREBY UPHOLDING THE ADDITION MADE TO THAT EXTENT. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX( APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS 45,76,756 /-MADE BY INVOKING THE PROVISIONS OF SECTION 41(1) OF THE INCOME TAX A CT, 1961 ON ACCOUNT OF ALLEGED CESSATION OF LIABILITY. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS NOT JUSTIFIED IN UPHOLDING AN ADDITION OF RS 173881/-ON ACCOUNT OF ALLEGED UNRECORDED PURCHASED IN BOOKS OF F ACCOUNTS OF THE APPELLANT. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) UPHOLDING AN ADDITION OF RS 57500/- MADE B Y ESTIMATING THE PROFIT EARNED ON SALE OF PLOT @10% OF THE SALE. ITA 1397/CHD/2016 A.Y. 2012-13 PAGE 2 OF 3 5. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) UPHOLDING THE ADDITION OF RS 1,11,527/- BY DISALLOWING THE EXPENSE OF INTEREST UNDER SECTION 36(L)(III) OF THE INCOME TAX ACT, 1961. 6. THAT IN THE FACTS AND CIRCUMSTANCES THE ORDER OF THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS BAD IN LAW AND FACTS. 2. AR MR. VISHAL MOHAN APPEARING ON BEHALF OF THE A SSESSEE SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE, THE ADDITION S MADE BY THE ASSESSING OFFICER BY HIS ORDER DATED 30.03.2015 PASSED U/S 14 3 HAVE BEEN UPHELD BY THE CIT(A) RELYING UPON THE DECISION OF THE APEX CO URT IN THE CASE OF CIT V. B.N. BHATTACHARGEE AND ANOTHER 118 ITR 46L (S.C) [R ELEVANT PAGES 477 & 478] AMONGST OTHERS INCLUDING CIT VS MULTIPLAN INDI A PVT. LTD. (1991) 38 ITD 320 AND THE DECISION OF HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF LATE SHRI TUKOJI RAO HOLKAR VS WEALTH TAX COMMIS SIONER 223 ITR 480 (MP) HOLDING THAT THE ASSESSEE WHO REMAINED UNREPRE SENTED ON THE LAST DATE I.E. 14.10.2016 MAY NOT BE SERIOUS IN PURSUING THE APPEAL. IT WAS HIS SUBMISSION THAT HE HAD BEEN REPRESENTING THE ASSESS EE BEFORE THE CIT(A) AND HE DOES NOT RECALL AS TO WHY HE WAS NOT PRESENT BEFORE THE CIT(A) ON THE SPECIFIC DATE. HOWEVER, THE FACT THAT SIMPLY ON THA T ONE DATE THE ASSESSEE WAS NOT REPRESENTED, PROBABLY AS HE AS A COUNSEL RE MAINED BUSY BEFORE THE HON'BLE HIGH COURT CANNOT BE SAID TO BE A CASE OF N ON REPRESENTATION ON THE PART OF THE ASSESSEE. ON EACH OF THE OTHER DATES, THE ASSESSEE HAD REMAINED PRESENT. IN THE CIRCUMSTANCES, HE MADE A PRAYER FO R REMAND. IT WAS HIS SUBMISSION THAT IN THE CASE OF REMAND, HE WOULD UND ERTAKE THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS FAIRL Y. IN THE CIRCUMSTANCES, IT WAS HIS PRAYER THAT SINCE ALL THE GROUNDS OF THE AS SESSEE HAVE BEEN DISMISSED FOR WANT OF PROSECUTION, IT WAS HIS PRAYE R THAT IN ENTIRETY, THE ORDER MAY BE REMANDED BACK TO THE FILE OF THE CIT(A ). 3. THE LD. SR.DR CONSIDERING THE ORAL UNDERTAKING G IVEN BY THE LD. AR AND THE MATERIAL AVAILABLE ON RECORD, POSED NO OBJE CTION TO THE SAID PRAYER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ACCEPTING THE ORAL UNDERTAKIN G GIVEN BY THE LD. AR, THE IMPUGNED ORDER IS SET ASIDE. THE DECISION TO COME TO THE SAID CONCLUSION IS SUPPORTED BY THE FACT THAT THE ORDER PASSED CANNOT BE SAID TO BE AN ORDER IN ITA 1397/CHD/2016 A.Y. 2012-13 PAGE 3 OF 3 TERMS OF THE STATUTORY REQUIREMENTS AS SET OUT IN S UB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT. THE STATUTE MANDATES TH AT THE COMMISSIONER(APPEALS) WHILE EXERCISING HIS APPELLAT E POWERS IS REQUIRED TO PASS AN ORDER WHICH SHALL BE IN WRITING AND SHALL STATE THE POINT S FOR DETERMINATION OF THE DECISION THEREON, IT ALSO MAND ATES THAT THE LD. CIT(A) SHALL GIVE HIS CONCLUSION BACKED BY REASONS ARRIVIN G AT THE CONCLUSION. WE FIND THAT THE SAID STATUTORY REQUIREMENTS ARE NOT F ULFILLED. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) W ITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE ASSESSE E IN ITS OWN INTEREST IS DIRECTED TO ENSURE THAT HE PARTICIPATES FULLY AND F AIRLY IN THE PROCEEDINGS BEFORE THE CIT(A) AND THE TRUST REPOSED IS NOT ABUS ED. IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED, T HE CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERI AL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME 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 05 TH JULY,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (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. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR