Sh. Sunil Kumar Garg, Moga V. ACIT, CC-II, Chandigarh

ITA 1460/CHANDI/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5799 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 10-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Reasonable cause
• Section: 271(1)(c); 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 1460/CHD/2017 (ASSESSMENT YEAR : 2005-06) SH. SUNIL KUMAR GARG VS. THE ASSTT. CIT HOUSE NO. 410, BAGH GALI, CENTRAL CIRCLE-II MOGA CHANDIGARH NEW ADDRESS: BACKSIDE GEETA BHAWAN PARWANA NAGAR, STREET NO.1A MAIN ROADE, MOGA-142001 PAN NO. AHCPG0165H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. SUDHIR SEHGAL DEPARTMENT BY : SMT. ZEENIA HANDA DATE OF HEARING : 01/04/2019 DATE OF PRONOUNCEMENT : 01/04/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT.30/12/2016 OF LD. CIT(A)-3, GURGAON. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-3 , GURGAON HAS ERRED IN NOT ALLOWING APPEAL FILED BY THE APPELLANT AGAIN ST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX A CT. 2. THAT THE ACTION OF THE LD. CIT (A) IN NOT ALLOWING APPEAL AND CONFIRMING PENALTY OF RS. 3,40,994/- LEVIED BY THE ASSESSING O FFICER U/S 271(1) (C) IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. NOTWITHSTANDING ABOVE SAID GROUNDS OF APPEAL, IT IS SUBMITTED THAT NO SUFFICIENT AND REASONABLE OPPORTUNITY WAS AFFORDED TO THE ASSESSEE TO REPRESENT THE CASE AND TO FILE SUBMISSIONS AND ALSO THE ASSES SEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE. 4. THAT THE LD. CIT(A) HAS ALSO ERRED IN NOT CONSIDERI NG THAT NO SPECIFIC CHARGES VIZ. CONCEALMENT OF INCOME OR FILING INACCU RATE PARTICULARS OF INCOME WERE MADE AGAINST THE ASSESSEE WHILE ISSUING THE NO TICE U/S 271 (1) (C) OF THE INCOME TAX ACT. 2 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF PENALTY OF RS. 3,40,994/-LEVIED BY TH E ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS ACT). 4. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT WAS CONDUCTED ON 15/07/20 08, AND 08/08/2008 AT THE RESIDENCES AND OFFICES OF THE INDIVIDUALS AND GROUP CONCERNS OF M/S B.R.S. INSTITUTE OF MEDICAL SCIENCES GROUP OF CASES. THERE FORE THE ASSESSING OFFICER ISSUED NOTICE DT. 01/01/2009 UNDER SECTION 153A OF THE ACT TO THE ASSESSEE AND SERVED UPON THE ASSESSEE. IN RESPONSE THE ASSESSEE FURNISHED THE RETURN OF INCOME ON 23/02/2010 DECLARING AN INCOME OF RS. 10, 99,715/- WHICH COMPRISED OF THE ADDITIONAL SURRENDERED INCOME OF RS. 10,00,0 00/-. THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS IN RESPECT OF THE INCOME DECLARED BY THE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAD NOT FIL ED ANY RETURN UNDER SECTION 139 OF THE ACT, HE ACCORDINGLY LEVIED THE PENALTY O F RS. 3,40,994/-, UNDER SECTION 271(1)(C) OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE EX-PARTE ORDER AND SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER. LD. CIT(A) WHILE PASSING THE EX-PARTE ORDE R OBSERVED THAT THE DATES OF HEARING WERE FIXED ON 28/06/2015, 14/09/2015 & 21/1 2/2016 BUT NON APPEARED ON BEHALF OF THE ASSESSEE ON ANY OF THOSE DATES. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE BY THE LD. CIT(A) AS SUCH NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE. 8. IN HER RIVAL SUBMISSIONS THE LD. SR. DR STRONGLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 9. 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 EX-PARTE, HE SIMPLY STATED THAT THE NOTICES OF HEARING WERE ISSUED TO THE ASSESSEE, HOW EVER, IT IS NOT CLEAR THAT AS TO WHETHER THOSE NOTICES WERE SERVED UPON THE ASSESSEE . . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXI M, AUDI ALTERAM PERTEM . WE THEREFORE KEEPING IN VIEW THE PRINCIPLES OF N ATURAL JUSTICE, DEEM IT APPROPRIATE TO REMAND THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE 3 ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/2019) . SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 01/04/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR