Sh. Kuldeep Singh, Ludhiana V. ITO, W-VI(4), Ludhiana

ITA 1458/CHANDI/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0739 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Principle of natural justice; Additional evidence; Reasonable cause
• Section: 27; 271(1)(c); 144; 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A , CHANDIGARH , !' , # $ % & ' , ()' BEFORE: SMT.DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, A M ./ ITA NO.1458/CHD/2017 / ASSESSMENT YEAR : 2009-10 KULDEEP SINGH C/O BELGIUM GLASS HOUSE THE INCOME TAX OFFICER, VI(4), LUDHIANA. ./PAN NO: ADJPS6912R /APPELLANT /RESPONDENT /ASSESSEE BY : NONE ! / REVENUE BY : SHRI MANJIT SINGH, SR.DR '# $ /DATE OF HEARING : 06.09.2018 %&'(# /DATE OF PRONOUNCEMENT: 30.11.2018 (* /ORDER PER ANNAPURNA GUPTA, A.M . : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, LUDHIANA (IN SHORT CIT(A) DATED 27.7.2 017 PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 (IN S HORT REFERRED TO AS ACT), CONFIRMING THE LEVY OF PENAL TY U/S 271(1)(C) OF THE ACT. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : L. THAT THE ORDER OF THE AO IS BAD IN THE EYES OF L AW AS WELL AS AGAINST THE FACTS OF THE CASE. 2. THAT THE PENALTY HAS WRONGLY BEEN IMPOSED ON THE ASSESSE. 3.THAT THE ORDER IS BAD TO THE EXTEND THAT THE DOCU MENTS AS PROVIDED UNDER RULE 46 WHERE SIMPLY BRUSHED ASIDE BY ANNOUNCING THAT THE SAME WE RE NOT PROVIDED DURING THE HEARING BEFORE THE AO AS WELL AS DURING THE QUANTUM PROCEED INGS BEFORE THE CIT(A) . BOTH THE AUTHORITIES IGNORE THE FACT THAT THE ASSESSE WAS UN DER MEDICAL SUPERVISION AND WAS GOING KIDNEY TREATMENT AND WAS UNDER REGULAR DIALYSIS , T HEREFORE HAD TO VISIT HOSPITAL FOR HIS ITA NO.1458/CHD/2017 A.Y.2009-10 2 TREATMENT TWICE A WEEK /EVERY WEEK. THE FACT WAS AL SO BROUGHT DURING THE HEARING BEFORE THE CIT( A). 4.THAT THE ASSESSE CRAVES TO AMEND , ALTER , DELETE OR SUPPLEMENT ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPOSED OFF . 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. ON GOIN G THROUGH THE GROUNDS RAISED BEFORE US AS REPRODUCED ABOVE WE FIND THAT IN GROUND NO.3 THE ASSESSEE HAS CHALLE NGED THE ORDER PASSED BY THE CIT(A) CONFIRMING THE LEVY OF P ENALTY, WITHOUT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND IGNORING THE PLEA OF THE ASSESSEE THAT HE HAD REASONABLE CAUSE FOR NOT FILING THE SAME BEFORE THE REVENUE AUTHORITIES IN QUANTUM PROCEEDINGS BEING UNDER MEDI CAL SUPERVISION UNDERGOING THE TREATMENT FOR KIDNEY AIL MENT. 4. ON PERUSING THE ORDER OF THE ASSESSING OFFICER I N QUANTUM PROCEEDINGS WE NOTED THAT THE SAME WAS PASS ED EX PARTE U/S 144 OF THE ACT. IT WAS NOTED FROM THE OR DER THAT THE NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE ON 30.8.2010 AND SERVED BY AFFIXTURE ON 27.9.2010. SE VERAL NOTICES THEREAFTER WERE ISSUED U/S 142(1) OF THE AC T WHICH REMAINED UNRESPONDED AND, THEREFORE, SINCE THE ASSE SSEE DID NOT COOPERATE IN THE ASSESSMENT PROCEEDINGS THE A.O . PROCEEDED TO FRAME EX-PARTE ASSESSMENT MAKING ADDIT ION OF CASH DEPOSITED IN BANK TO THE EXTENT OF RS.30,01,00 0/- AND INVESTMENT IN PROPERTY TO THE EXTENT OF RS.10,60,00 0/- TREATING THE SAME AS INCOME OF THE ASSESSEE SINCE T HE SOURCES FOR BOTH REMAINED UNEXPLAINED.. THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT(A) WHERE ALSO, WE FIND, NONE APPEARED AND THE CASE WAS DECIDED EX-PARTE AGA IN, UPHOLDING THE ORDER OF THE A.O. 5. THEREAFTER NOTICES FOR INITIATING PENALTY PROCEE DINGS WERE ISSUED BY THE AO WHICH REMAINED UNRESPONDED. WHEN FINAL OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO FILE HIS RESPONSE, THE ASSESSEE FILED HIS SUBMISSIONS IN WRI TING STATING THAT THE ADDITION MADE IN QUANTUM PROCEEDIN GS DID NOT TANTAMOUNT TO ADMISSION AS HE HAD FALLEN SICK D URING THE COURSE OF PROCEEDINGS AND, THEREFORE, NO PENALT Y COULD ITA NO.1458/CHD/2017 A.Y.2009-10 3 BE LEVIED ON THE SAME. THE A.O. BRUSHED ASIDE THE CONTENTION OF THE ASSESSEE AND LEVIED PENALTY ON TH E ADDITIONS MADE OF RS.40,61,000/- (RS.30,0100 + RS.10,60,000), BEING 100% OF THE TAX SOUGHT TO BE E VADED ON THE SAME AMOUNTING TO RS.19,07,516/-. 6. THE MATTER WAS CARRIED IN APPEAL BEFORE THE LD.C IT(A), WHERE THE ASSESSEE, WE FIND, MADE DETAILED SUBMISSI ONS FOR HIS NON ATTENDANCE IN QUANTUM PROCEEDINGS AND ALSO EXPLAINED THE SOURCE OF CASH DEPOSITS AND INVESTMEN T IN PROPERTY,ALL DULY SUBSTANTIATED WITH EVIDENCES. THE ASSESSEE STATED THAT SINCE HE WAS UNDERGOING MEDICA L TREATMENT FOR KIDNEY AILMENT, THE ASSESSMENT PROCEE DINGS COULD NOT BE ATTENDED AND NO EXPLANATION, THEREFORE , COULD BE OFFERED FOR THE SOURCE OF THE CASH DEPOSITED IN THE BANK AND THE INVESTMENT IN PROPERTY. MEDICAL REPORTS OF THE CLINICS/HOSPITALS WHERE THE TREATMENT WAS TAKEN WAS FILED. HE FURTHER STATED THAT THE SOURCE OF CASH DEPOSIT I N BANK AND THE INVESTMENT IN PROPERTY,AMOUNTING IN ALL TO RS.40,61,000/- ,WAS FROM THE SALE OF A PROPERTY FOR RS. 50 LACS. IT WAS CONTENDED THAT THE ASSESSEE HAD ENTERE D INTO AN AGREEMENT TO SELL HIS PROPERTY TO TWO PERSONS JOINTLY,SH.AVINASH JAIN & SH.PRABHJEET SINGH,FOR RS .50 LACS, VIDE AGREEMENT DATED16-12-08, RECEIVING FULL AMOUNT FROM THEM AND THAT A GENERAL POWER OF ATTORNEY WAS EXECUTED IN THEIR NAME. COPIES OF THE AGREEMENT TO SELL AND DULY ATTESTED POWER OF ATTORNEYS WERE FILED. IT WAS THIS AMOUNT,THE ASSESSEE CONTENDED, WHICH HAD BEEN DEPOS ITED IN BANK AND INVESTED IN PROPERTY. IT WAS FURTHER CO NTENDED THAT THE SALE OF THE PROPERTY WAS REGISTERED IN TH E SUCCEEDING YEAR ON 14-10-09,BY THE ASSESSEE ON BEHA LF OF THE POWER OF ATTORNEY HOLDERS AND CHEQUES RECEIVED FOR CONSIDERATION. LD.COUNSEL CONTENDED THAT THE AO HAD MISTAKEN THIS PAYMENT AS RECEIVED BY HIM ON SALE OF PROPERTY AND THEREFORE REJECTED THE ASSESSEES EXPLA NATION OF SOURCE OF DEPOSIT IN BANK AND INVESTMENT AS BEING F ROM SALE OF HIS PROPERTY ,WHILE THE FACT WAS THAT THE ASSESS EE HAD ITA NO.1458/CHD/2017 A.Y.2009-10 4 ALREADY RECEIVED PAYMENT IN THE IMPUGNED YEAR ON EN TERING INTO AN AGREEMENT TO SELL. THE CONTENTION RAISED BY THE ASSESSEE AS REPRODUCED IN THE ORDER OF THE CIT(A) A T PARA 3.2 OF HIS ORDER ARE AS UNDER: 3.2. AT THE TIME OF APPELLATE PROCEEDINGS, THE LD . COUNSEL OF THE ASSESSEE HAS FILED WRITTEN SUBMISSION ON 14.10.2014 WHICH ARE AS UNDER:- OUR SUBMISSION:- SIR , YOUR ATTENTION IS INVITED TOWARD THE FOLLOWIN G FACTS WHICH ARE VERY MUCH INCIDENTAL TO THE FACTS AS WELL AS CIRCUMSTANCE OF THE CASE WHICH PASSING THE ORDER U/S 143(3) AS WELL AS THEREAFTER PASSING OF THE ORDER U/S 271(1) (C ) OF THE I.TAXACT:- NOTICE U/S 143(2) WAS ISSUED ON 30.08.2010 AND WAS SERVED BY AFFIXTURE ON 27.09.2010 AND THEREAFTER THE CASE WAS TRANSFERRED TO RANGE II FROM RANGE VI AS THE JUHSDICTION FALLS UNDER RANGE II LUDHIANA AT THAT TIME. NOTICE U/S 142(1) ALONG WITH NOTICE U/S 143(2) WAS ISSUED ON 27.10.2011 FOR 12.08.2011 AND WAS SERVED UPON THE ASSESSE ON 27.10 .2011 FOR 02.11.2011 AS HE COULD NOT ATTEND THE PROCEEDINGS, AGAIN NOTICE U /S 142(1) WAS ISSUED ON 04.11.2011 FOR 18.11.2011, THOUGH AGAIN HE COULD NO T PROVIDE THE REQUIRED DOCUMENTS. AGAIN NOTICE WAS ISSUED ON 01.12.2011 U/S 142(1) FO R 09.12.2011 . COPY OF THE BANK STATEMENT ALONG WITH COPY OF THE TITLE DEED WAS PRO VIDED TO THE A.O AT THE TIME OF ASSESSMENT. THE A. O WAS VERY WELL AWARE OF THE CIR CUMSTANCE OF THE ASSESSEE AS AT ON DIFFERENCE OCCASION THE NOTICE SERVER REPORTED AT T HE HOUSE WAS LOCKED OR ASSESSEE NOT AVAILABLE AT THE PLACE, IN FACT THE ASSESSEE WAS HO SPITALIZED NUMBER OF TIME FOR HIS DIALYSIS . THAT IT WAS ALREADY REPORTED BY THE NOTICE SERVER O RDER PAGE 2 PARA 4 OF THE BODY OF THE ORDER THAT HE WENT AT THE GIVEN ADDRESS AND THE AS SESSEE WAS NOT AVAILABLE AND HIS WIFE REFUSED TO RECEIVE THE NOTICE'. THAT IT WAS AGAIN REPORTED BY THE NOTICE SERVER ON 22.12.2011 WAS 'NO ONE OPENED THE DOOR OF THE NOTICE AS HE KNOCKED THE DOOR TWICE'. THE ASSESSEE HAS BEEN UNDERGOING TREATMENT SINCE 20 08 WITHIN THE CITY FROM DIFFERENCE HOSPITALS. THAT DURING THE PERIOD OF ASSESSEMENT AN D EVEN BEFORE AND AFTER HE HAD BEEN UNDERGOING TREATMENT, THE DETAILS AS :- DMC -HERO HEART LUDHIANA DT 11.11.2008 KIDNEY HYPERTENSION CLINCE DT 21.11.2011 LUDHIANA MEDIWAYS DT 29.11.2011 LUDHIANA MEDICITI DT 19.12.2011 ATTACHED VIDE PAPER BOOK SRNO 1 THAT THE COUNSEL OF THE ASSESSEE APPEARED ON 09.12. 2011 AND PRODUCED THE COPY OF THE SAVING ACCOUNT WITH SYNDICATE BANK MILLER GANJ LUDH IANA A/C NO 81532010004980 AND WAS ASKED TO PRODUCE THE SOURCE OF DEPOSIT IN THE S AVING ACCOUNT OF THE ASSESSEE. THAT THE INFORMATION RELATING THE CASH DEPOSIT BY T HE ASSESSEE INTO HIS SAVING ACCOUNT WITH SYNDICATE BANK MILLER GANJ LUDHIANA TO THE TUN E OF RS 30,01,000/-ALONG WITH THE COPY OF THE SALE DEED WAS PROVIDED TO THE A. O ON 20.1 2.2011 WHICH HAS ALREADY BEEN ADMITTED BY THE A.O AS PER HIS ORDER U/S 143(3 ) PAGE NO 2 PARA 5. HENCE THE COPY OF THE BANK STATEMENT, SALE DEED OF PLOT SITUATED AT H.NO 244-H BRS NAGAR LUDHIANA MEASURING 400 SQ YDS AMOUNTING TO RS 50 LACS AS WELL AS TITLE DEED FOR PLOT PURCHASED MEASURING 530 SY YDS AT VILLAGE THAR EEKAY TENSIL DISTT LUDHIASNA FORRS 10,60,000/- (EX- STAMP VALUE) WAS PROVIDED BY THE C OUNSEL OF THE ASSESEE ON 20.12.2011 . AS THE ASSESSEE HAD BEEN UNDERGOING TREATMENT HE COULD NOT APPEAR BEFORE THE A.O AT THE TIME OF ASSESSEMENT TO EXPLAIN THE FULL DETAILS . ITA NO.1458/CHD/2017 A.Y.2009-10 5 WHILE GOING THROUGH THE SALE DEED OF H.NO 244-H BHA I RANDHIR SINGH NAGAR LUDHIANA , THE A.O TOOK THAT THE SALE PROCEED OF THE PLOT HAD BEEN RECEIVED BY THE ASSESSEE VIDE CHEQUE NO 519807, 519805 AND 519806 FOR RS 20 LACS , RS 5 LACS AND RS 25 LACS RESPECTIVELY WAS COMPLETELY WRONG, THOUGH AS PER TH E TITLE DEED THE SELLER RECEIVED THE AMOUNT (NOT NOT THE APPELLANT) BUT THE SALE DEED WA S MADE BY THE ASSESSEE ON BEHALF OF THE POWER OF ATTORNEY HOLDER, THE SAME HAS ALREADY BEEN REITERATED IN THE TITLE DEED ITSELF THE SAME WAS IGNORED BY THE A.O THE SALE DEED OF THE PROPERTY AT H .NO 244-H BRS NA GAR LUDHIANA HAS BEEN EXECUTED BY S KULDIP SINGH ON BEHALF OF GENERAL POWER OF ATT ORNEY 'HOLDER S PRABHJIT SINGH S/O S KARNAIL SINGH RESIDENT OF GURU ARJUN DEV NAGAR SAMR ALA ROAD LUDHIANA AND SH PARDEEP SHARMA S/O SH DESRAJ RESIDENT OF JANTA NAGAR GILL R OAD LUDHIANA VIDE POADT 17/1'2/2008 NO 3810 VASIKA NO 22 SUB REGISTRAR LUDH IANA. THE AO HAD FAILED TO APPRECIATE THE SAME , HENCE TH E PENALTY IMPOSED BY THE AO IS WRONG .UNLAWFUL AND UNCALLED FOR AND LIABLE TO BE D ELETED. THAT THE THIRD GROUND OF APPEAL IS THAT NO VERIFICATON HAS BEEN MADE BY THE A. O WHILE IMPOSING /INSHIATING THE PENALTY. OUR SUBMISSION:- THAT THE SALE DEED OF THE PROPERTY SITUATED AT H.NO 244-H BHAI RANDHIR SINGH NAGAR LUDHIANA HAD BEEN SOLD BY S KULDIP SINGH S/O S AVTA R SINGH ON BEHALF OF THE GENERAL POWER OF ATTORNEY HOLDER S PRABHJIT SINGH S/O S KAR NIAL SINGH AND SH PARDEEP SHARMA S/O S DESRAJ VIDE POA NO 6810 DT 17.12.2008 AND ALR EADY STATED IN THE DEED THAT THE POA HOLDER ARE STILL ALIVE AND THE POA HAD NOT BEEN CANCELLED BY THE S KULDIP SINGH. SALE WAS MADE TO SMT AMARJIT KAUR W/O LATE S RANJOD SINGH S/O S BATCHATTAR SINGH AND THE SALE DEED WAS EXECUTED ON 14.10.2009. THE A.O M ISUNDERSTOOD AND TOOK THE DIFFERENT VIEW THAT THE AMOUNT OF THE DEPOSIT OF RS 30,01,000/-HAD NOT BEEN REFLECTED IN THE SALE DEED RATHER THE SALE DEED WAS FOR RS 50 LA CS AND S KULDIP SINGH HAS RECEIVED THE SAME BY WAY OF PAYEE ACCOUNT CHEQUE AS ALREADY MENTIONED IN THE BODY OF THE ASSESSMENT ORDER. THE DETAIL OF THE TRANSACTION EXECUTED BY S KULDIP SINGH S/O S AVTAR SINGH ARE AS UNDER , WHICH COULD NOT BE PROVIDED AT THE TIME OF ASSESSEM ENT AS HE WAS NOT WELL AND WAS HOSPITALIZED (DETAILS ALREADY PROVIDED) . ASSESSEE HAD ENTERED INTO AGREEMENT FOR SALE OF PRO PERTY NO 244- H BRS NAGAR WITH SH ASHWANI JAIN & SH PARDEEP SHARMA JOINTLY FOR RS 50 LACS VIDE AGREEMENT DT 16.12.2008 (FULL AND FINAL PAYMENT RECEIVED VIDE SALE AGREEMEN T STAMP PAPER NO H647167, H 647170 AND H 647169 ) ATTACHED VIDE PAPER BOOK NO 2 COPY OF THE POWER OF ATTORNEY EXECUTED JOINTLY IN F AVOR OF (1) SH AVINASH JAIN S/O SH DIWAN CHAND JAIN AND (2) SH PARDEEP SHARMA S/OSH DE S RAJ EXECUTED ON STAMP PAPER OF RS 15 VIDE NO 2487 AND STAMP PAPER PURCHASED THR OUGH STAMP VENDOR SH TARSEM KUMAR GUPTA L.NO 22 AND THE POA ATTESTED BY EXECUTI VE MAGISTRATE TESHIL LUDHIANA AND RECORDED VIDE AFFIDAVIT NO 207.910 DT 18/12/2008 , (S. KULDIP SINGH HAD HIMSELF APPEARED BEFORE THE MAGERISTATE). ATTACHED VIDE PAPER BOOK NO 3 COPY OF SELF DECLARATION OF S KULDIP SINGH S/O S AV TAR SINGH DT 17.12.2008 STATING THAT HE WAS THE ABSOLUTE OWNER OF THE PROPERTY SITUATED AT 244 H BRS NAGAR LUDHIANA AND THAT HE HAS SOLD THE PROPERTY JOINTLY TO SH AVINASH JAIN AND SH PRBAHJEET SINGH AND RECEIVED THE FULL AND FINAL PAYMENT AND FURTHER STATED THAT HE SHALL BE HELD RESPONSIBLE FOR THE OLD TITLE DEED IF MISUSED . THE SAME WAS EXECUTED ON ST AMP PER OFRS 15 NO 12648. THE STAMP PAPER WERE PURCHASED THROUGH STAMP VENDOR SUK HPAL SINGH UPPAL LNO 20 DISTT ITA NO.1458/CHD/2017 A.Y.2009-10 6 COURT LUDHIANA . THE SAME HAD BEEN RECORDED AS AFFI DAVIT NO 207.908 DT 18/12/2008 WITH EXECUTIVE MAGERISTATE LUDHIANA . ATTACHED VIDE PAPER BOOK NO 4 THEREFORE THE SALE AMOUNT OF RS 50 LACS HAD BEEN RE CEIVED BY S AVTAR SINGH AS PER THE COPY OF THE AGREEMENT EXECUTED ON 16.12,2008 WITH S H AVINASH JAIN AND SH PARDEEP SHARMA AND OUT OF THE SALE PROCEED THE AMOUNT OF RS 30 LACS WAS DEPOSITED INTO HIS SAVING ACCOUNT NO 801532010004980 WITH SYNDICATE BA NK MILLER GANJ LUDHIANA ON 17.12.2008 THE PENALTY HAS ALSO BEEN RAISED / IMPOSED THAT ASS ESSEE HAD PURCHASED A LAND FOR RS 10.60.000/- ON 17.12.2008 OUR SUBMISSION :- AS S KULDIP SINGH S/O S AVTAR SINGH HAD RECEIVED TH E SALE PROCEED FROM SALE OF H.NO 244-H BRS NAGAR LUDHIANA FOR RS 50 LACS AND OUT OF THE SAME RS 30,01,000/- HAD BEEN DEPOSITED IN THE SAVING ACCOUNT AND THAT OUT O F THE SALE PROCEEDS / BALANCE AMOUNT THE AVAILABLE WITH THE APPELLANT THE AMOUNT HAD B EEN UTILIZED FOR THE PURCHASE OF THE PROPERTY SITUATED AT VILLAGE THREEKA LUDHIANA THEREFORE IT IS PRAYED THAT THE PENALTY IMPOSED BY THE A.O BE DELETED IN FULL. SRNO DATE DETAILS OF TRANSACTION AMOUNT NET 1. 17.04.1990 PURCHASED PLOT AT 244-H BRS NAGAR LDH 1,01,250/- 2,96,120/- 2. -- SELF INVESTMENTS 7,50,000/- 3. 06.12.2006 HOUSING LOAN RAISED FROM SYNDICATE BANK 9,99,900/- 4 15.12.2006 DO 2,00,000/- 5 15.11.2007 DO 3,00,000/- 6 31.03.2008 SELF INVESTMENTS 2,00,000/- 23,99,900/- 7. 17.12.2008 SALE OF UNIT AS PER AGREEMENT 50,00,000/- 8 16.12.2008 LOAN SETTLED SYNDICATE BANK VILLAGE THREEKA, LUDHIANA (COST PLUS STAMP DUTY) 14,51,172/- 9 19.12.2008 SPEND ON CONSTRUCTION (WITH DRAWALS AS PER BANK STATEMENT) 11,48,800/- 10 31.03.2009 TO 31.03.2010 HOUSING LOAN RAISED FROM LIC HOUSING FINANCE LTD. RS. 26 LAC 15,00,000/- 11 07.06.2010 DEPOSITED RS. 20 LACS IN SYNDICATE BANK A/C NO 81532010004980 12. 17.02.2011 HOUSING LOAN RAISED AND DEPOSITED INTO SAVING A/C WITH IOB 351100001 7,00,000/- 13. 11.03.2011 DO 3,00,000/- 3,00,000/- ITA NO.1458/CHD/2017 A.Y.2009-10 7 7. ADDITIONAL EVIDENCES,BY WAY OF COPY OF AGREEMENT TO SELL DATED 16-12-08 , GENERAL POWER OF ATTORNEY IN THE NAMES OF SH. AVINASH JAIN & SH.PRADEEP SHARMA,COP O F SELF DECLARATION OF THE ASSESSEETHAT HE WAS ABSOLUTE OWN ER OF THE PROPERTY AND THAT HE HAD SOLD THE SAME TO THE T WO PERSONS AND RECEIVED FULL AND FINAL PAYMENT FROM TH EM, WERE FILED BY THE ASSESSEE TO SUBSTANTIATE ITS EXPL ANATION FOR THE SOURCE OF CASH DEPOSITED AND THE INVESTMENT IN PROPERTY. THE LD.CIT(A) REFUSED TO ADMIT THE ADDITI ONAL EVIDENCE STATING THAT ADEQUATE OPPORTUNITY HAD BEEN GIVEN TO THE ASSESSEE EARLIER. THE RELEVANT PORTION OF TH E CIT(A)S ORDER IN THIS CONTEXT AT PARA 6 OF THE ORDER IS AS UNDER: 6. I HAVE GONE THROUGH THE RIVAL SUBMISSION. I HAV E ALSO GONE THROUGH THE PENALTY ORDER UNDER SECTION 27 1(1) (C). I HAVE ALSO GONE THROUGH THE BASIC FACTS OF THE CASE UNDER SECTION 143 (3) AS STATED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS. I HAVE COME TO THE CONCLUSION THAT THE APPELLANT DOES NOT HAVE ANY REGARD TO WORDS ANY INCO ME TAX PROCEEDINGS EITHER AT THE TIME OF ASSESSMENT OF QUAN TUM UNDER SECTION 143 (3) OF APPELLATE PROCEEDINGS OF Q UANTUM BEFORE CIT APPEAL. THE APPELLANT DID NOT FILE ANY AD DITIONAL EVIDENCE BEFORE THE CIT APPEAL AT THE TIME OF APPELLAT E PROCEEDINGS FOR DECIDING QUANTUM APPEAL. IT IS SURPRIS ING TO NOTE THAT AFTER PASSING SO MANY YEARS NOW THE APPELLA NT HAS FILED ADDITIONAL EVIDENCE WITHOUT GIVING ANY COGENT AND REASONABLE REASON FOR NONPRODUCTION OF THIS ADDITIO NAL EVIDENCE UNDER 46A. THE APPELLANT FILED APPLICATION A DDITIONAL EVIDENCE WIDE ITS WRITTEN SUBMISSION DATED 1 SEPTEMBER 20 14. THE ASSESSING OFFICER WAS ASKED TO SEND HIS COMMENT S ON THE WRITTEN SUBMISSION WHICH HAVE BEEN RECEIVED VIDE LE TTER DATED 15 OCTOBER 2014. AS REPRODUCED ABOVE THE ASSESSING OFFICER IS PERFECTLY THAT THE APPELLANT WAS GIVEN SUFFICIENT OPP ORTUNITY AT THE TIME OF ASSESSMENT AND AS WELL AS THE PROCEEDINGS BEFORE CIT APPEAL FOR DECISION OF QUANTUM U/S 143(3). I HAV E ALSO GONE THROUGH THE DETAILED AND IS SEEN THAT ALTHOUGH THE APPELLANT IS REITERATED THAT THE APPELLANT WAS THE AS UNDER MEDICATION DURING YEAR 2008 AND LATER ON IN FINANCIAL Y EAR 2011-2012 AS THE MEDICAL REPORTS FILED BY THE APPELLAN T DURING THE COURSE OF APPELLATE PROCEEDINGS NOW. I HA VE CAREFULLY GONE THROUGH THESE DETAILS AND FURTHER SE EN THAT THE APPELLANT PROCEEDINGS HAVE TAKEN PLACE AT LATER STA GES WHEREIN THE APPELLANT WAS NOT PREVENTED TO FILE THESE DETAILS AND ADDITIONAL EVIDENCE. EVEN AT THE TIME OF PENALTY PROCEEDINGS WHEN THE ORDER IS DATED 16 JANUARY 2014 THE APPELLANT DELIBERATELY CHOSE NOT TO RESPOND WITH REGA RD TO SHOW CAUSE FOR LEVYING OF PENALTY UNDER SECTION 271(1 ) (C). THE ITA NO.1458/CHD/2017 A.Y.2009-10 8 ASSESSING OFFICER HAS MENTIONED THAT WRITTEN SUBMISS ION OF THE APPELLANT FILED AT THE TIME OF PENALTY PROCEEDINGS. D URING THIS PERIOD WHEN WILL WAS NOT PREVENTED FILE SUCH ADDITIONAL EVIDENCE AND ADDITIONAL FACTS THEN ALSO THE APPELLAN T DID NOT FILE ANY ADDITIONAL EVIDENCE OR DOCUMENT AND DID NO T COME WITH THE PROPER FACTS THEREFORE THE ASSESSING OFFICER HAS RI GHTLY LEVIED PENALTY UNDER SECTION 271(1) (C). 8. THUS THE CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVIDENCES AS ABOVE AND WENT AHEAD TO CONFIRM THE LE VY OF PENALTY U/S 271(1)(C) OF THE ACT. 9. BEFORE US THE LD. DR RELIED UPON THE ORDER OF TH E CIT(A). 10. WE HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND HEARD THE LD. DR AND WE FIND THAT IN THE FACTS OF THE PRESENT CASE THE CIT(A) HAS GROSSLY ERRED IN NOT AD MITTING THE ADDITIONAL EVIDENCES. THE ASSESSEE, WE FIND, HA D DEMONSTRATED REASONABLE CAUSE FOR NOT PRODUCING THE SAME BEFORE THE LOWER AUTHORITIES BEING SICK WITH KIDNEY AILMENT AND UNDERGOING TREATMENT FOR THE SAME AND DULY SUBSTANTIATED THE SAME WITH EVIDENCE. THIS FACT WAS TIME AND AGAIN REITERATED BEFORE THE REVENUE AUTHORITIES WHO HAVE FAILED TO CONTROVERT THE SAME. MOREOVER,THE AS SESSEE EXPLAINED THE SOURCE OF CASH DEPOSITED IN BANK AND THE INVESTMENT MADE IN PROPERTY AS BEING FROM SALE OF P ROPERTY AND FILED ADDITIONAL EVIDENCES TO SUBSTANTIATE THE SAME.THE ADDITIONAL EVIDENCES FILED BY WAY OF AGREEMENT TO S ELL THE PROPERTY ENTERED INTO IN THE IMPUGNED YEAR,THE POWE R OF ATTORNEY EXECUTED IN THE NAMES OF PERSONS WITH WHOM THE AGREEMENT TO SELL WAS ENTERED INTO ,ARE ALL NECESSA RY FOR DECIDING WHETHER THE SOURCE OF CASH DEPOSITS IN BAN K AND INVESTMENTS MADE BY THE ASSESSEE STOOD EXPLAINED A ND THEREFORE WHETHER IT WAS A FIT CASE FOR LEVY OF PEN ALTY FOR CONCEALING/FURNISHING INACCURATE PARTICULARS OF INC OME. IT IS SETTLED LAW THAT THE ADDITIONS MADE IN QUANTUM PROCEEDINGS DO NOT AUTOMATICALLY LEAD TO THE LEVY O F PENALTY AND THE ASSESSEE CAN OFFER EXPLANATION DURING ASSES SMENT PROCEEDINGS TO SAVE ITSELF FROM THE RIGOURS OF PENA LTY ,SINCE PENALTY PROCEEDINGS ARE DISTINCT AND SEPARATE FROM THE ITA NO.1458/CHD/2017 A.Y.2009-10 9 QUANTUM PROCEEDINGS. IN VIEW OF THE SAME, WE FIND THAT THE CIT(A) IN THE PRESENT CASE HAS DONE GROSS INJUSTICE BY NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASS ESSEE WHEN THE ASSESSEE HAD DEMONSTRATED REASONABLE CAUSE FOR NOT ADDUCING THE SAME EARLIER AND HAD ALSO DEMONSTR ATED THAT THE ADDITIONAL EVIDENCES WENT TO THE ROOT OF T HE MATTER AND WERE RELEVANT FOR ADJUDICATING THE ISSUE OF LEV Y OF PENALTY. THE ACT OF THE LD.CIT(A), WE FIND, IS AGAI NST ALL PRINCIPLES OF NATURAL JUSTICE. WE, THEREFORE, SET A SIDE THE ORDER OF THE CIT(A) IN NOT ADMITTING THE ADDITIONAL EVIDENCES FILED AND DIRECT ADMISSION OF THE SAME. THE ISSUE O F LEVY OF PENALTY IS FURTHER RESTORED TO THE CIT(A) TO VERIFY THE EVIDENCES FILED BY THE ASSESSEE AND THEREAFTER ADJU DICATE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- # $& % ' (DIVA SINGH) (ANNAPURNA GUPTA) +' / JUDICIAL MEMBER ()' / ACCOUNTANT MEMBER # /DATED: 30 TH NOVEMBER, 2018 * * &) *+,+ / 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. /35' / GUARD FILE