M/s Ess Ess Exim Private Limited, Chandigarh V. DCIT, Central Circle I, , Chandigarh

ITA 1420/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1048 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 06-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C CHANDRAKANTA CIT DR
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL HEARING) .., !' '# $, % &' BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M ITA NOS. 1420, 1421 & 1422/CHD/2019 ASSESSMENT YEARS : 2005-06, 2006-07 & 2010-11 M/S ESS ESS EXIM PVT. LTD. SCO-141-143, SECTOR 43-B CHANDIGARH THE DCIT CENTRAL CIRCLE-1 CHANDIGARH PAN NO: AABCE1490J APPELLANT RESPONDENT !' ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE #!' REVENUE BY : SMT. C. CHANDRAKANTA (CIT DR) $ %! & DATE OF HEARING : 02/06/2020 '()*! & DATE OF PRONOUNCEMENT : 02/06/2020 &(/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE SEPARATE ORDER OF THE LD. CIT(A)-3, GURGAON EACH DT. 14/08/2 019. 2. SINCE THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE AND BREVITY. 3. FIRST WE WILL DEAL WITH THE APPEAL IN ITA NO. 14 20/CHD/2019 FOR THE A.Y. 2005-06 WHEREIN ASSESSEE HAS RAISED THE FOLLOWING G ROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN PASSING AN EX-PARTE ORDER WHICH IS AGAINST THE PRIN CIPALS OF NATURAL JUSTICE AND AS SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS FURTHER ERRED IN LAW IN UPHOLDING THE FRAMING OF ASSESSMENT UNDER SECTION 153A RWS 143(3) OF THE ACT WITHOUT THERE BEING ANY INCRI MINATING MATERIAL HAVING BEEN FOUND DURING THE COURSE OF SEARCH RELAT ING TO THE SAID YEAR AND AS SUCH THE ASSESSMENT FRAMED IS ILLEGAL, ARBIT RARY & UNJUSTIFIED WHICH MERITS TO BE QUASHED. 2 3. THAT THE LD COMMISSIONER OF INCOME TAX(APPEALS) HAS FAILED TO CONSIDER THE DECISION OF THE HON'BLE DELHI HIGH COU RT RENDERED IN THE CASE OF MEETA GUTGUTIA REPORTED IN 395 ITR 526 AND THE SLP FILED BY THE REVENUE AGAINST THIS DECISION WHICH STANDS DISMISSE D VIDE ORDER REPORTED IN 96 TAXMANN.COM 468(SC) WHEREIN IT HAS BEEN HELD THAT INVOCATION O F SECTION I53A TO RE-OPEN CONCLUDED ASSESSMENTS OF AS SESSMENT YEARS EARLIER TO SEARCH WAS NOT JUSTIFIED IN ABSENCE OF I NCRIMINATING MATERIAL FOUND DURING SEARCH QUA EACH SUCH EARLIER ASSESSMEN T YEAR BESIDES OTHER DECISIONS RENDERED IN THE CASE OF KABUL CHAWLA REPO RTED IN 380 ITR 573, MALA BUILDERS OF THE JURISDICTIONAL ITAT AND AS SUC H THE ASSESSMENT FRAMED IS ILLEGAL, ARBITRARY & UNJUSTIFIED. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSI ONER OF INCOME TAX(APPEALS) HAS ERRED IN UPHOLDING THE ASSESSMENT FRAMED AT INCOME RS. 1,03,09,250/- AS AGAINST RETURNED INCOME OF RS.3,09 ,520/- WHICH IS ARBITRARY AND UNJUSTIFIED. 5. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 1,00,00,000/- WHICH H AS BEEN REPEATED BY THE ASSESSING OFFICER AS MADE IN ORIGINAL ASSESSMEN T WHICH IS ARBITRARY AND UNJUSTIFIED. 6. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF T HE CASE AND IS, THUS, UNTENABLE. 4. VIDE GROUND NO. 1 THE MAIN GRIEVANCE OF THE OF T HE ASSESSEE RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A) AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 5. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT NO NOTICE FOR HEARING WAS RECEIV ED BY THE ASSESSEE FROM THE LD. CIT(A), THEREFORE, HE WAS NOT JUSTIFIED IN PASS ING THE EXPARTE ORDER WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 6. IN HER RIVAL SUBMISSIONS THE LD. CIT DR ALTHOUGH SUPPORTED THE ORDERS OF THE LD. CIT(A) BUT COULD NOT CONTROVERT THE AFORESAID C ONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EXPARTE AN D NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. 3 IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . WE THEREFORE BY KEEPING IN VIEW, THE PRINCIPLES OF NATURAL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE TH IS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 8. IN OTHER APPEALS I.E; ITA NO. 1421/CHD/2019 FOR THE A.Y 2006-07 AND ITA NO. 1422/CHD/2019 FOR THE A.Y. 2010-11, THE FACTS A RE IDENTICAL AS WERE INVOLVED IN ITA NO. 1420/CHD/2019 FOR THE A.Y. 2005-06, EVEN THE RIVAL CONTENTIONS WERE SIMILAR, THEREFORE, OUR FINDINGS GIVEN IN THE FORME R PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS FOR THESE APPEALS ALSO. 9. IN THE RESULT, ALL THE ABOVE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 02/06/2020 ) SD/- SD/- '# $ .., (SANJAY GARG ) ( N.K. SAI NI) % &'/ JUDICIAL MEMBER / VICE PRESIDENT AG DATE: 02/06/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE