M/s Namrata Marketing Agencies, Chandigarh V. JCIT (TDS), Chandigarh

ITA 147/CHANDI/2015

• Counselvise Citation: 14721514 RSA 2015
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-08-2015
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJINDER KAUR
• Assessee Lawyers: MINKY MITTAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA MEHROTRA,ACCOUNTANT MEMBER ITA NO. 146 & 147/CHD/2015 ASSESSMENT YEAR: 2012-13 NAMRATA MARKETING AGENCIES VS THE JCIT (TDS), SCO 44, SECTOR 26, CHANDIGARH. CHANDIGARH. PAN: PTLN10316F (APPELLANT) (RESPONDENT) APPELLANT BY : MS. MINKY MITTAL RESPONDENT BY : MS. RAJINDER KAUR DATE OF HEARING : 24.08.2015 DATE OF PRONOUNCEMENT : 27.08.2015 O R D E R PER BHAVNESH SAINI,JM BOTH APPEALS BY ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS)-II CHANDIGARH DATED 28.11.2014 FOR FINANCIAL YEAR 2011-12 ASSESSMENT YE AR 2012-13 CHALLENGING THE LEVY OF PENALTY UNDER SECTI ON 272A(2)(K) OF THE INCOME TAX ACT. 2. THE LD. CIT(APPEALS) NOTED IN THE IMPUGNED ORDER S THAT APPEALS WERE FIXED BEFORE HIM ON 28.11.2014, HOWEVER, NOBODY APPEARED BEFORE HIM ON THE DATE OF 2 HEARING THEREFORE, APPEALS WERE DISPOSED OF VIDE OR DER DATED 28.11.2014. THE LD. CIT(APPEALS) NOTED IN TH E IMPUGNED ORDERS THAT FORM NO. 35 OF APPEAL PAPERS REVEALED THAT FORM OF VERIFICATION HAS NOT BEEN APP ENDED WITH THE APPEAL PAPERS. SINCE THE ASSESSEE HAS NOT VERIFIED THE APPEAL AS PER RULE 45, THEREFORE, APPE AL OF THE ASSESSEE IS NOT FILED IN ACCORDANCE WITH LAW AN D CANNOT BEEN ADMITTED. THE SAME WERE REJECTED IN-LI MINE AND BOTH THE APPEALS OF THE ASSESSEE WERE DISMISSED . 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEALS WERE ONLY FIXED FOR 28.11.2014 AND WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE T O CURE THE DEFECTS IN THE APPEAL PAPERS, THE APPEALS HAVE BEEN DISMISSED ON THE SAME DAY I.E. 28.11.2014. 4. ON THE OTHER HAND, LD. DR SUBMITTED THAT SINCE APPEALS ARE NOT VERIFIED IN THE MANNER AS PROVIDED UNDER RULE 45 OF THE IT RULES, THEREFORE, APPEALS W ERE RIGHTLY DISMISSED IN-LIMINE. 5. WE HAVE HEARD LD. COUNSEL OF BOTH THE PARTIES AN D PERUSED THE FINDINGS OF AUTHORITIES BELOW. IT IS N OT IN DISPUTE THAT ASSESSEE FILED APPEALS BEFORE LD. CIT(APPEALS) IN FORM NO. 35 AS PRESCRIBED UNDER THE LAW. HOWEVER, THE CONTENTS OF THE APPEAL PAPERS WERE NOT VERIFIED AS PROVIDED UNDER RULE 45 OF THE IT RULES. IN CASE NO VERIFICATION IS MADE TO THE APPEAL PAPERS, IT MAY BE AN IRREGULARITY IN FILING THE APPEALS BUT IT COU LD NOT 3 BE SAID TO BE THAT APPEALS FILED BY ASSESSEE WITHOU T VERIFICATION WERE INVALID. WHEN THERE WAS A DEFECT IN FORM NO. 35 FOR FILING APPEALS BEFORE LD. CIT(APPEA LS), THE LD. CIT(APPEALS) SHOULD HAVE ASKED FOR THE EXPLANATION OF THE ASSESSEE TO CURE DEFECTS IN THE APPEAL PAPERS. THE IMPUGNED ORDERS SHOW THAT LD. CIT(APPE ALS) DID NOT GIVE ANY OPPORTUNITY TO THE ASSESSEE TO REM OVE THE DEFECTS IN THE APPEAL PAPERS AND NEVER ASKED TH E ASSESSEE TO FILE THE VERIFICATION IN PRESCRIBED FOR M UNDER THE RULES SO AS TO MAKE THE APPEAL PAPERS COMPLETE. THE NOTICE WAS ISSUED FOR HEARING OF THE APPEAL FOR 28.11.2014 AND ON THE SAME DAY, APPEALS OF THE ASSESSEE HAVE BEEN DISMISSED. IT IS, THEREFORE, CL EAR THAT PRINCIPLE OF NATURAL JUSTICE HAS BEEN VIOLATED IN THIS CASE. THE ASSESSEE SHOULD HAVE BEEN GIVEN ONE CHANCE TO REMOVE THE DEFECTS IN THE APPEAL PAPERS. 6. CONSIDERING THE ABOVE DISCUSSION, WE SET ASIDE T HE IMPUGNED ORDERS OF LD. CIT(APPEALS) AND RESTORE BOT H THE APPEALS TO THE FILE OF LD. CIT(APPEALS)-II CHAN DIGARH WITH DIRECTION TO RE-DECIDE BOTH THE APPEALS OF THE ASSESSEE BY GIVING OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE TO REMOVE THE DEFECTS IN FORM NO. 35 FOR F ILING THE APPEALS BEFORE LD. CIT(APPEALS). THE ASSESSEE IS DIRECTED NOT TO SEEK ANY UNNECESSARY ADJOURNMENT IN THE MATTER AND SHALL CORE THE DEFECT IN FORM NO. 35 AS PER LAW. 4 7. IN VIEW OF THE ABOVE FINDINGS, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST,2015. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH AUGUST,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH