Parminder Singh Grewal, Sangrur V. ITO, Ward, Sangrur

ITA 1500/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5733 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-03-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 25-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1500/CHD/2019 / ASSESSMENT YEAR : 2015-16 SHRI PARMINDER SINGH GREWAL, S/O SHRI INDER PAL SINGH, ST. NO. 1, OFFICER COLONY, NANKIANA ROAD, SANGRUR. VS THE ITO, WARD, SANGRUR. ./ PAN NO: ABPPG0573J / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE (ADJOURNMENT APPLICATION OF SHRI SANKET SINGLA, ADVOCATE # ! ' / REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ % ! &/ DATE OF HEARING : 04.03.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 28.04.2021 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 12.05.2018 OF CI T(A), PATIALA PERTAINING TO 2015-16 ASSESSMENT YEAR IS ASSAILED O N THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF THE WORTHY CIT(A) INSOFAR IS AGAI NST THE APPELLANT, IS BAD IN LAW, AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE, PR INCIPLES OF NATURAL JUSTICE, EQUITY AND ALL OTHER KNOWN PRINCIPLES OF LAW. 2. THAT THE ORDER OF THE WORTHY CIT (A) IS NOT JUSTIFI ED ON THE GROUND THAT THE WORTHY CIT(A) HAS FAILED TO ADJUDICATE THE MATTER THAT COM PENSATION RECEIVED AMOUNTING TO RS. 48,70,421/- ON ACCOUNT OF COMPULSORY ACQUISI TION OF LAND IN QUESTION IS COVERED UNDER THE PROVISIONS OF THE RIGHT TO FAIR C OMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMEN T ACT 2013 AND IS A EXEMPT FROM LEVY OF INCOME TAX U/S 96 OF THE SAID ACT. ITA-1500/CHD/2019 A.Y. 2015-16 PAGE 2 OF 5 3. THAT THE WORTHY CIT (A) IS NOT JUSTIFIED IN SUSTAI NING THE ADDITION OF RS. 3,20,183/- UNDER THE HEAD INCOME FROM OTHER SOURCE WITHOUT APP RECIATING THE FACT THAT THE APPELLANT HAS INADVERTENTLY PAID TAX ON THE WHOLE A MOUNT OF COMPENSATION RECEIVED AMOUNTING TO RS. 48,70,421/-. THUS HAS RESULTED IN DOUBLE TAXATION. 4. THAT THE WORTHY CIT (A) WAS NOT JUSTIFIED IN CLUBBI NG THE BOTH GROUNDS OF APPEAL FILED BEFORE HIM CONSIDERING THE SAME TO BE INTER L INKED AND TAKEN UP TO TOGETHER FOR ADJUDICATION. 5. THAT THE ORDER OF THE WORTHY CIT(A) NOT JUSTIFIED A S THE WORTHY CIT(A) HAS FAILED TO APPRECIATE THE REVISED COMPUTATION OF INCOME SHEET SUBMITTED BEFORE WORTHY A.O. AND WORTHY CIT(A). 6. THAT THE ORDER OF THE WORTHY CIT (A) IS NOT JUSTIFI ED AS THE WORTHY CIT (A) HAS FAILED TO ADJUDICATE THE MATTER THAT SECTION 96 OF THE RFC TLAAR ACT EXEMPTS ALL THE ACQUISITIONS FROM LEVY OF INCOME TAX EXCEPT THE ACQ UISITION U/S 46 OF THE ACT. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUND OF APPEAL. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATI ON HAS BEEN MOVED ON BEHALF OF THE ASSESSEE. HOWEVER, CONSIDERING TH E SPECIFIC GROUND NOS. 1, 4 & 5 IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE HEARING AFTER HEARING THE LD. SR.DR AND CONSIDERING THE MATERIAL AVAILABL E ON RECORD. 3. A PERUSAL OF THE GROUNDS REFERRED TO FOR CONSID ERATION, SPECIFICALLY GROUND NO. 1, IT IS SEEN THAT THE IMPUGNED ORDER HA S BEEN PASSED WITHOUT HEARING THE ASSESSEE AND THEREFORE IS CONTRARY TO T HE PRINCIPLES OF NATURAL JUSTICE. 4. THE LD. SR.DR WAS REQUIRED TO ADDRESS THE FACTS. 5. THE SR.DR SUBMITTED THAT WRITTEN SUBMISSIONS MAD E AVAILABLE TO THE LD. CIT(A) HAVE BEEN CONSIDERED. 6. I HAVE HEARD THE SUBMISSIONS. IT IS SEEN THAT T HE ASSESSEE FILED A RECTIFIED APPLICATION REQUESTING THAT THE ORDER PAS SED BY THE FIRST APPELLATE AUTHORITY DATED 12.05.2018 IN APPEAL NO. 10276/17-18 MAY BE CORRECTED. TO MAKE OUT ITS CASE AS ALLOWABLE IN LA W, CERTAIN WRITTEN ITA-1500/CHD/2019 A.Y. 2015-16 PAGE 3 OF 5 SUBMISSIONS WERE ADMITTEDLY AVAILABLE. THE APPLICA TION WAS DISMISSED WITHOUT HEARING THE ASSESSEE. NO SPECIFIC NOTICE A PPEARS TO HAVE BEEN ISSUED TO THE ASSESSEE INFORMING HIM THAT RELIEF CL AIMED IS NOT ALLOWABLE. THE ASSESSEE HAS ASSAILED THE ORDER PASSED U/S 154 OF THE ACT AS BEING UNSUSTAINABLE IN LAW AS THE ASSESSEE WAS NOT HEARD. IN THE SAID BACKGROUND, IT IS SEEN THAT NO DOUBT THE APPEAL HAS BEEN DECIDED ON THE BASIS OF WRITTEN SUBMISSION OF THE ASSESSEE. HOWEVE R, IT IS SEEN THAT IF THE PRAYER IN THE WRITTEN SUBMISSIONS WAS HELD TO BE NO T ALLOWABLE, THEN IT SHOULD HAVE BEEN CONVEYED TO THE ASSESSEE AND IT HA S NOT BEEN SO CONVEYED. IN TERMS OF THE DUE PROCESS OF LAW, IT GOES WITHOUT SAYING THAT THE ASSESSEE WAS ENTITLED TO BE PUT TO SUCH NOTICE IN ALL FAIRNESS. THE PRINCIPLE THAT NO ONE SHOULD BE CONDEMNED UNHEARD I S INVIOLATE. IT IS INCUMBENT ON THE TAX AUTHORITIES TO EXERCISE THEIR POWERS FAIRLY AND TRANSPARENTLY. IT IS SEEN THAT THERE IS NO WAIVER GIVEN BY THE AS SESSEE THAT THE RIGHT TO BE HEARD IS BEING WAIVED OFF AND THE W RITTEN SUBMISSIONS INSTEAD BE CONSIDERED IN SUBSTITUTION THEREOF. REL IANCE PLACED BY A PARTY SOLELY ON THE WRITTEN SUBMISSIONS IN GOOD FAITH MAY EMANATE FROM A SANG FROIS BELIEF THAT THE RELIEF WAS SO PATENTLY ALLOWABLE T HAT NO ARGUMENTS NEED BE ADVANCED TO CONVINCE THE AUTHORITY TO GRANT THE SAME. SUCH BELIEF CANNOT BE SO CONSTRUED TO CONCLUDE, HOLD AND BELIEV E THAT THE RIGHT TO BE HEARD IS BEING WAIVED OFF. THE WAIVER HAS TO BE CONSCIOUS AND WITH AWARENESS THAT SUCH A RIGHT IS VESTED AND CAN BE WA IVED . THE DECISION TO WAIVE, HENCE NEEDS TO BE A CONSCIOUS WAIVER AND NOT IN IGNORANCE OF THE FOUNDATIONAL FACT OF ACTIVE AWARENESS THAT THE RIGHT TO BE HEARD EXISTS AND IS ITA-1500/CHD/2019 A.Y. 2015-16 PAGE 4 OF 5 AVAILABLE UNDER LAW. RIGHT TO BE HEARD FORMS THE B ED ROCK OF THE PRINCIPLES OF NATURAL JUSTICE. THE WORD NATURAL JUSTICE IS DER IVED FROM THE ROMAN WORD JUS NATURALE WHICH PRESUPPOSES THE APPLICATION OF PRINCIPLES O F NATURAL LAW FOR DETERMINATION OF THE DISPUTE. APPLICATION OF NATURAL LAW AS HAS EVOLVED OVER THE CENTURIES IN COMMON LAW COUNTRIES MEANS AND INCLUDES JUSTICE, EQUITY, FAIR PLAY AND GOOD CONSCIENCE. ANY EXERCISE OF POWER WHICH IS IN CONFLICT WITH THESE AIMS IS OPEN TO THE CHALL ENGE OF BEING ARBITRARY AND UNSUSTAINABLE IN LAW. THE ABOVE LIST, IT MAY BE MAD E CLEAR IS NOT EXHAUSTIVE. ALL ACTIONS WHICH STRIKE AT THE NON NEGOTIABLE AXIO M NAMELY JUSTICE SHOULD NOT ONLY BE DONE BUT SEEN TO BE DON E ARE EXPECTED TO BE ADHERED TO WHEN THE STATE ACTS EXERCISING ITS VAST POWERS OVER ITS CITIZENS. THE ACTIONS ARE EXPECTED TO BE CARRIED OUT IN FAIRN ESS. THESE ARE THE BARE MINIMUM STANDARDS WHICH ARE EXPECTED TO BE ADHERED TO. FAIR PLAY PRE SUPPOSES AS HAS BEEN OFT LAID DOWN FAIR NOTICE OF C HARGE, AND PLACE OF HEARING, OPPORTUNITY OF EFFECTIVE HEARING TO ADDRES S THE CHARGE AND SPEAKING ORDER ADDRESSING THE REASONS FOR AGREEING OR DISAGR EEING WITH THE CLAIMS PUT FORTH. AUDI ALTEREM PARTEM WHICH IS ONE OF THE FOUNDATIONAL AND FUNDAMENTAL BED ROCKS OF NATURAL JUSTICE MEANS AND INCLUDES THAT NO ONE SHOULD BE CONDEMNED UN HEARD. THOUGH THESE RULES AR E NOT NECESSARILY CODIFIED HOWEVER, THEY HAVE EVOLVED OVER THE YEARS AND ARE READ INTO NOT ONLY WHEN STATUTORY PROVISIONS SO PROVIDE BUT ALSO IN QUASI ADMINISTRATIVE DECISIONS WHEREBY THE RIGHTS / INTERESTS OF THE PAR TY IS ADVERSELY EFFECTED. THUS, EVEN IN THE ABSENCE OF A CLEAR LEGISLATIVE MA NDATE, THE COURTS HAVE REPEATEDLY HELD THAT THE PROCEDURE REQUIRED TO BE A DHERED TO ENVISAGE A RIGHT TO BE HEARD. NO DOUBT A PARTY MAY CHOOSE TO W AIVE THE RIGHT TO BE ITA-1500/CHD/2019 A.Y. 2015-16 PAGE 5 OF 5 HEARD AND INSTEAD CHOOSE TO RELY ON WRITTEN SUBMISS IONS . HOWEVER IT IS THE DUTY OF THE COURT TO ENSURE THAT THE WAIVER SO MADE IS CONSCIOUSLY MADE WITH FULL KNOWLEDGE AND UNDERSTANDING I.E; WITH THE FOREKNOWLEDGE THAT THE RIGHT TO BE HEARD EXISTS. THE RECORD IS SILENT ON THIS ASPECT. 7. ACCORDINGLY SINCE THERE IS NOTHING ON RECORD TO SHOW THAT THE RIGHT TO BE HEARD WAS CONSCIOUSLY AND KNOWINGLY WAIVED, THE IMPUGNED ORDER IS RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRE CTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PRONOUNC ED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESENCE OF THE PARTI ES VIA WEBEX. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 TH APRIL,2021. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER