Punjab Wakf Board, Chandigarh V. Addl. CIT, TDS, Chandigarh

ITA 1514/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4060 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Onus to prove; TDS; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH , ! ' . . . . # , $% ! BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 1514/CHD/2018 / ASSESSMENT YEAR : 2012-13 PUNJAB WAKF BOARD, SCO 1062-63, SECTOR 22-C, CHANDIGARH. VS THE ADDL. CIT (TDS), CHANDIGARH. ./ PAN/TAN NO: PTLP1179D / APPELLANT / RESPONDENT / ASSESSEE BY : NONE / REVENUE BY : SHRI MANJIT SINGH, CIT-DR ! ' # / DATE OF HEARING : 02.05.2019 $%&' # / DATE OF PRONOUNCEMENT : 07.05.2019 $& / ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 27.09.2018 OF CIT(A)-1 CH ANDIGARH PERTAINING TO 2012-13 ASSESSMENT YEAR. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THE PRES ENT APPEAL ON THE OPPORTUNITY OF BEING HEARD AND ALSO ON MERITS OF THE PENA LTY ORDER CONFIRMED BY THE CIT(A). FOR READY REFERENCE, GROUNDS RAISED ARE REPRODUCED HEREUNDER : 1. THAT THE LEARNED CIT(APPEALS) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT ASSESSEE. 2. THAT THAT THE PENALTY HAS IMPOSED IN DEFIANCE OF PR OVISIONS OF SECTION 274 OF THE INCOME TAX ACT, 1961 AND DESERVED TO BE CANCELLED. 3. THAT THE CIT (A) HAS GRIEVOUSLY ERRED IN ASSUMING T HAT THE SHOW CAUSE NOTICE WAS PROPERLY SERVED ON THE APPELLANT ASSESSEE ON EXTRAN EOUS ASSUMPTIONS AND CONSIDERATION AND A REASONABLE OPPORTUNITY OF BEING HEARD HAS BEE N ALLOWED TO THE APPELLANT. 4. THAT THE LEARNED CIT(A) MADE ENQUIRIES AT THE BACK OF THE APPELLANT AND RECEIVED A REMAND REPORT ON WHICH HE HAS RELIED WHILE DISMISSI NG THE APPEAL. THE ACT OF THE LEARNED CIT(A) IS AGAINST THE PRINCIPLES OF EQUITY AND JUST ICE AND DESERVED TO BE SET ASIDE. 5. THAT THE POST OFFICE IS AGENT OF THE SENDER IN THIS CASE THE LEARNED ADDL. COMMISSIONER OF INCOME TAX TDS. AND AS SUCH THE BURDEN OF PROOF THA T PROPER SERVICE OF SHOW CAUSE NOTICE IS ON THE DEPARTMENT WHICH IT HAS SQUARELY FAILED T O DISCHARGE. 6. THAT ON FACTS OF THE CASE THE PENALTY IMPOSED BY TH E LEARNED ADDL. COMMISSIONER OF INCOME TAX(TDS) IS LIABLE TO BE CANCELLED. 7. ANY OTHER GROUND OF APPEAL THAT MAY BE TAKEN UP AT THE TIME OF HEARING OF THE APPEAL. ITA 1514/CHD/2018 A.Y. 2012-13 PAGE 2 OF 3 3. AS PER THE STATEMENT OF FACTS PLACED ON RECORD, THE ASSESSEE HAS ADDRESSED THE POSITION AS ON 21.08.2014 AS UNDER : 1. THAT THE APPELLANT RECEIVED A NOTICE FOR SHOW CA USE DATED 11.08.2014 ON 21.08,2014 FROM THE ADDITIONAL COMMISSIONER OF INCOME TAX (TDS) CHA NDIGARH. 2. THAT THE DATE OF HEARING AS INDICATED ON THE SHO W CAUSE NOTICE WAS 19.08.2014. 3.-THAT ON 21 ST AUGUST 2014 AN OFFICER OF THE PUNJAB WAKF BOARD VI SITED THE OFFICE OF LEARNED ADDITIONAL COMMISSIONER WITH THE REQUEST TO AFFORD PROPER OPPORTUNITY TO THE APPELLANT. THE APPELLANT MOVED AN APPLICATION FOR GRANTING PROPER OPPORTUNITY FOR HEARING. 4. IN THIS REGARD IT IS SUBMITTED THAT THE ASSESSEE M OVED AND APPLICATION FOR GRANT OF HEARING. THE SAID APPLICATION WAS NOT ACCEPTED AT THE RECEIP T COUNTER. THERE AFTER THE SAID APPLICATION WAS DISPATCHED VIDE REG. POST. 5. THAT PRINCIPLES OF NATURAL JUSTICE AND EQUITY HAVE BEEN BLATANTLY IGNORED AND THE ASSESSEE/APPELLANT WAS NOT ALLOWED ANY OPPORTUNITY IN THE BEFORE IMPOSITION OF PENALTY. 4. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BEHA LF OF THE ASSESSEE, HOWEVER AFTER HEARING THE LD. CIT-DR IT WAS DEEMED APP ROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APP ELLANT AFTER HEARING THE LD. CIT-DR ON MERITS. A PERUSAL OF PARA 5.3 OF THE IMPUGNED ORDER SHOWS THAT THE ASSESSEE BEFORE THE CIT(A) TOOK THE POSITION THAT ON THE DATE OF HEARING ON 19.08.2014, THE ASSESSEE COULD NOT PARTICIPATE BEFORE THE AO ON ACCOUNT OF THE FACT THAT THE NOTICE FOR THE SAID HEARING WAS RECEIV ED ON 21.08.2014. THE OBSERVATIONS RECORDED IN THE SAID PARA DEMONSTRATE THA T THE DEPARTMENT WAS UNABLE TO VERIFY THIS FACTUAL POSITION, HOWEVER IN PARA 5.3.1 , IT WAS NOTICED THAT THE ASSESSEE HAD BEEN GIVEN OPPORTUNITY OF BEING HEARD ON 23.07.2018 WHICH IS SHOWN TO HAVE BEEN DISPATCHED ON 23.07.2014. IT APPEARS THAT IT IS A TYPOGRAPHICAL ERROR IN THE DATES, HOWEVER, WHAT CAN BE G LEANED IS THAT ADMITTEDLY THE OPPORTUNITY ON 19.08.2014 COULD NOT BE AV AILED OF BY THE ASSESSEE ON ACCOUNT OF LATER INTIMATION OF THE DATE OF HEA RING AND PRIOR TO THIS, THERE WAS ALSO EARLIER INTIMATIONS WHEREIN ALSO, THE ASS ESSEE DID NOT PARTICIPATE. CONSIDERING THE RECORD, WE FIND THAT THE ORD ER PASSED BY THE CIT(A) CANNOT BE UPHELD IN AS MUCH AS ADMITTEDLY, THERE W AS A LACK OF OPPORTUNITY BEFORE THE AO AT THE PENALTY STAGE WHICH FAC T WAS BROUGHT TO THE NOTICE OF THE CIT(A). IN THE CIRCUMSTANCES, THE LD. CIT(A) S HOULD HAVE AFFORDED THE ASSESSEE AN OPPORTUNITY OF BEING HEARD BY REMANDING THE ISSUE TO THE AO AND ADJUDICATING UPON THE ISSUE ON THE BASIS OF REMAND R EPORT ETC. SO OBTAINED. HOWEVER, SINCE THERE ARE FACTUAL INACCURACIES IN PARA 5.3.1 OF THE ORDER, WE SET ASIDE THE ORDER BACK TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IN TERMS OF THE A BOVE DIRECTIONS, THE ASSESSEE'S EXPLANATION QUA THE PENALTY IMPOSED U/S 272 A(2)(K) IS DIRECTED TO BE CONSIDERED IN ACCORDANCE WITH LAW. FOR READY REFERENC E, PARAS 5.3 AND ITA 1514/CHD/2018 A.Y. 2012-13 PAGE 3 OF 3 5.3.1 OF THE IMPUGNED ORDER WHICH WE HAVE NOTICED EARLIER, ARE EXTRACTED HEREUNDER FOR READY REFERENCE : 5.3 THE LD. COUNSEL FOR THE APPELLANT IN HIS WRITT EN SUBMISSION HAS STATED THAT ADEQUATE OPPORTUNITY WAS NOT ALLOWED TO HIM AND THE RE WAS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE SHOW CAUSE NOTICE ISSUED BY TH E DEPARTMENT ON 11.08.2014 WAS ALLEGEDLY SERVED ON 21.08.2014 WHILE THE DATE OF HE ARING WAS 19.08.2014 AND ORDER WAS PASSED ON 21.08.2014. HE HAS SUBMITTED COPY OF NOTI CE IN WHICH SHOWING SERVICE OF NOTICE ON 21.08.2014. OFFICIAL RECORD WAS CALLED FR OM THE OFFICE OF TDS 8S EXAMINED AND REMAND REPORT WAS ALSO OBTAINED FROM JOINT COMMISSI ONER OF INCOME TAX (TDS), CHANDIGARH. AS PER THE OFFICIAL COPY OF NOTICE, NO STAMP OF SERVICE IS THERE. AS PER THE REMAND REPORT THE NOTICE WAS DISPATCHED BY SPEED PO ST ON 11.08.2014 VIDE NO. EP11084381 UN. THE ASSESSING OFFICER COULD NOT TRAC E THE EXACT DATE OF SERVICE OF NOTICE FROM THE WEBSITE OF INDIA POST BECAUSE FOUR YEARS HAD ELAPSED. THE DATE OF SERVICE PRESENTED BY THE APPELLANT IS SELF SERVING AND NON VERIFIABLE FROM ANY OFFICIAL RECORD EITHER OF THE INCOME TAX DEPARTMENT OR OF THE INDIA POST. THEREFORE, IT CANNOT BE ASCERTAINED WHETHER THE NOTICE WAS SERVED LATE OR N OT. NORMALLY, A LETTER SENT, BY SPEED PEST WITHIN THE SAME CITY WOULD NOT TAKE 10 DAYS TO BE DELIVERED. 5.3.1 IT IS WORTHWHILE TO NOTE THAT THE NOTICE SOUG HT TO BE DISPUTED BY THE APPELLANT WAS THE FINAL AND LAST OPPORTUNITY. THE APPELLANT WAS GIVEN AN EARLIER OPPORTUNITY VIDE NOTICE NO. TDS/CHD/2014-15/747 DATED 23.07.2018, WH ICH WAS DISPATCHED BY SPEED POST ON 23.07.2014 VIDE NO. 110845415IN AND SERVED ON THE APPELLANT . THE APPELLANT WAS IN KNOWLEDGE OF THE PROCEEDINGS A MONTH EARLIER TO THE FINAL HEARING DATE, THEREFORE, HAD BEEN GIVEN ADEQUATE OPPORTUNITY TO REPRESENT IT S CASE. IN VIEW OF THESE FACTS, THE PLEA OF THE APPELLANT WITH RESPECT TO INADEQUATE OPPORTU NITY IS REJECTED. (EMPHASIS SUPPLIED BY US) SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE T IME OF HEARING ITSELF. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07. 05.2019. SD/- SD/- ( . . . . # ) ( ) (DR. B.R.R. KUMAR) (DIVA SINGH) $% ! / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER ' ( %( )* +* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ! , / CIT 4. ! , )/ THE CIT(A) 5. *-. / , # / , 012.3 / DR, ITAT, CHANDIGARH 6. .2 4' / GUARD FILE %( ! / BY ORDER, 5 / ASSISTANT REGISTRAR