Haladhar Das, Cashar V. Income Tax Officer, Ward-1, Silchar

ITA 145/GTY/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3296 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 08-09-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHRAJYOTI BHATTACHARYA
• Assessee Lawyers: NIRMAL SINGH DUGAR
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 143(2); 147; 148; 144

Judgement Text

1 ITA NO. 145/GAU/2020 SHRI HALADHAR DAS, AY 2014-15 IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 145/GAU/2020 ASSESSMENT YEAR: 2014-15 SHRI HALADHAR DAS (PAN: CLHPD 7497 L) VS. ITO, WARD-1, SILCHAR APPELLANT RESPONDENT DATE OF HEARING 06.10.2021 DATE OF PRONOUNCEMENT 21.10.2021 FOR THE APPELLANT SHRI NIRMAL SINGH DUGAR, A.R FOR THE RESPONDENT SHRI SUBHRAJYOTI BHATTACHARYA, ADDL. CIT SR. D.R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSE E AGAINST THE ORDER OF LD. CIT(A)- SHILLONG DATED 26.09.2019 FOR ASSESSMENT YEAR 2014- 15. 2. THE ASSESSEE HAS FILED ADDITIONAL GROUND OF APP EAL CHALLENGING THE ACTION OF AO FOR NON-SERVICE OF NOTICE U/S 143(2) OF THE INCO ME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BEFORE COMPLETING THE ASSES SMENT U/S 147/144 OF THE ACT. ON THIS ISSUE, IT IS NOTED THAT THE AO HAD RE-OPENED T HE ASSESSMENT AND HAD ISSUED NOTICE U/S 148 OF THE ACT DATED 05/09/2018 TO THE ASSESSEE WHICH WAS SERVED ON 08.09.2018. HOWEVER THE AO NOTES THAT THE ASSESSEE DID NOT COMP LY WITH THE NOTICE U/S 148 OF THE ACT BY FILING THE RETURN OF INCOME, THEREFORE HE IS SUED NOTICE U/S 142(1) OF THE ACT CALLING FOR CERTAIN DETAILS WHICH WAS ALSO NOT RESP ONDED BY THE ASSESSEE. THEREFORE THE AO NOTES THAT HE HAD NO OTHER ALTERNATIVE BUT T O FRAME ASSESSMENT U/S 144 OF THE ACT ON THE BASIS OF INFORMATION AVAILABLE ON RECORD . IN SUCH A SCENARIO, I AGREE THAT THE AO HAD NO OTHER ALTERNATIVE BUT TO PROCEED WITH FRAMING ASSESSMENT U/S 144 OF THE ACT SINCE IT IS ADMITTED THAT THE ASSESSEE HAD NOT FILED THE RETURN OF INCOME PURSUANT TO THE SERVICE OF NOTICE U/S 148 OF THE AC T. THEREFORE, THE AO RIGHTLY DID NOT 2 ITA NO. 145/GAU/2020 SHRI HALADHAR DAS, AY 2014-15 ISSUE NOTICE U/S 143(2) OF THE ACT, BECAUSE THERE W AS NO STATUTORY REQUIREMENT OF THE AO TO ISSUE THE SAME. ERGO THIS LEGAL ISSUE RAISED STANDS DISMISSED. 3. COMING TO THE OTHER GROUND OF APPEAL OF THE ASSE SSEE IT IS NOTED THAT IT IS AGAINST THE IMPUGNED THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 17,40,000/- AS LONG TERM CAPITAL GAIN. ACCORDING TO ASSESSEE THIS AMOUNT WAS SALE CONSIDERATION OF HIS SHAIEL DHAN BHUMI/ SHAIEL RAIC E LAND/RURAL AGRICULTURAL LAND WHICH IS EXEMPTED U/S 10(37)(1) READ WITH SECTION 2 (14) OF THE ACT WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AT TH E ASSESSMENT STAGE. 4. HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. FIRST OF ALL IT IS NOT IN DISPUTE THAT THE ASSESSMENT ORDER HAS BEEN PASSED AFTER REO PENING U/S 147 OF THE ACT AND THEREAFTER BY FRAMING THE ASSESSMENT U/S 144 OF THE ACT BECAUSE ACCORDING TO AO THE ASSESSEE DID NOT CO-OPERATE DURING THE ASSESSMENT PROCEEDINGS. AND IT IS THE ASSESSEES CASE THAT FOR REASONS BEYOND HIS CONTROL BEING NOT WELL HE WAS PREVENTED FROM RESPONDING TO THE NOTICE U/S 142(1) AND NOTI CE U/S 144 OF THE ACT. SO, AS HELD BY THE HONBLE SUPREME COURT TIN BOX COMPANY VS. CI T REPORTED IN (2001) 249 ITR 216 (SC) IF SUFFICIENT OPPORTUNITY IS NOT GIV EN BY THE AO WHILE FRAMING OF ASSESSMENT, THEN THE ASSESSEE SHOULD BE GIVEN OPPOR TUNITY BEFORE THE AO. THE HONBLE SUPREME COURT IN TIN BOX CO. (SUPRA) IT WAS HELD AS UNDER: 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN TH ESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT READS THUS : 'WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEE'S SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD.' 2. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEF ORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVE N A REASONABLE OPPORTUNITY OF SELLING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIB UNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 3. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ?' 3 ITA NO. 145/GAU/2020 SHRI HALADHAR DAS, AY 2014-15 4. IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. 5. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLEN GE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBU NAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRES H CONSIDERATION, AS AFORESTATED. NO ORDER AS TO COSTS. IN THE LIGHT OF THE AFORESAID DECISION OF HONBLE S UPREME COURT SINCE THE AO HAS FRAMED THE ASSESSMENT WITHOUT PARTICIPATION FROM TH E SIDE OF THE ASSESSEE FOR REASONS AS DISCUSSED (SUPRA) AND SINCE THE ASSESSEE HAS TO EXPLAIN THE AMOUNT DEPOSITED IN HIS BANK ACCOUNT SUPPORTED BY THE DOCUMENTS AND THE AO HAD TO EXAMINE THE VERACITY OF THE SAME, I DEEM IT FIT TO SET ASIDE THE IMPUGNED O RDER OF LD. CIT(A) FOR DE NOVO ASSESSMENT ON THE ISSUE OF ADDITION MADE BY THE AO. BEFORE ME THE LD. A.R. OF THE ASSESSEE HAS UNDERTAKEN TO PRODUCE ALL THE DOCUMENT S BEFORE THE AO IN THE ASSESSMENT PROCEEDINGS AND FILE WRITTEN SUBMISSIONS ALSO TO SUBSTANTIATE HIS CLAIM ON THE ISSUE/LIS. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2021 SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED: 21.10.2021 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI HALADHAR DAS, S/O, LATE CHURAMO NI DAS, VILL & PO BHAKATPUR, PT. VIII, RANGIRKHARI, CACHAR, ASSAM- 788005 2 RESPONDENT ITO, WARD-1, SILCHAR 3. 4. 5. CIT(A), SHILLONG CIT- DR, ITAT, GUWAHATI / TRUE COPY, BY ORDER, SENIORPVT. SECY./DDO/H.O.O ITAT, KOLKATA BENCHES, KOLKATA