Kailash Nath Khurana, Meerut V. ITO, Meerut

ITA 1541/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6492 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 20-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 23-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

I.T.A .NO.-1541/DEL/2016 KAILASH NATH KHURANA VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-1 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1541/DEL/2016 (ASSESSMENT YEAR-2005-06) KAILASH NATH KHURANA, 72, BEGUM BAGH, MEERUT PAN-AESPK0939A ( APPELLANT) VS ITO, WARD-1(3), MEERUT (RESPONDENT) ASSESSEE BY SH.V.RAJA KUMAR, ADV. REVENUE BY SH.N.K.BANSAL, SR.DR DATE OF HEARING 20.10.2016 DATE OF PRONOUNCEMENT 16.12.2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 27.01.2016 OF CIT(A), MEERUT PERTAINING TO 200506 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE, INVITING ATTENTION TO THE IMPUGNED ORDER, SUBMITTED THAT THE LIMITED PRAYER OF THE ASS ESSEE IS THAT AN OPPORTUNITY OF BEING HEARD MAY BE GRANTED TO THE ASSESSEE. THE ASSESSMENT IT WAS SUBMITTED HAS BEEN PASSED BY THE ASSESSING OFFICER U/S 144/147 OF THE ACT AND BEFOR E THE CIT(A) THOUGH THE ASSESSEE REPRESENTED THROUGH HIS COUNSEL, SH. ANURAG RISHI A S PER PARA 3 OF THE IMPUGNED ORDER THE COUNSEL MERELY SOUGHT ADJOURNMENTS AND DID NOT PLAC E THE NECESSARY FACTS AND EVIDENCES ON BEHALF OF THE ASSESSEE ENTRUSTED TO HIM. AS A RESU LT OF THIS, THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE CONFIRMED BY THE CIT(A) WITH OUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. THE LD. AR GAVE HIS ORAL UNDERTAKING THAT IN THE EVENTUALITY THE IMPUGNED ORDER IS SET ASIDE AND THE ASSESSEE IS GIVEN AN OPPORTUNITY OF BEING HEARD, THE ASSESSEE WOULD PARTICIPATE IN THE PROCEEDINGS . ACCORDINGLY IT WAS HIS PRAYER THAT THE ISSUE MAY BE SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER AS THE ASSESSMENT ORDER IS ALSO AN EX-PARTE ORDER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. PAGE 2 OF 3 I.T.A .NO.-1541/DEL/2016 KAILASH NATH KHURANA VS ITO 3. THE LD. SR.DR, SH.N.K. BANSAL HAD NO OBJECTION I F THE IMPUGNED ORDER IS SET ASIDE AND AN OPPORTUNITY OF BEING HEARD IS GRANTED TO THE ASS ESSEE AS HE WOULD HAVE NO OBJECTION IF THE ASSESSEES SUBMISSIONS ARE ACCEPTED NAMELY THAT THE SUBMISSIONS OF THE LD. AR THAT THE ADVOCATE ENGAGED BY THE ASSESSEE DID NOT REPRESENT THE CASE. HOWEVER, IT WAS HIS SUBMISSION THAT THE ISSUE BE SET-ASIDE TO THE FILE OF THE CIT(A) NOT TO THE ASSESSING OFFICER AS THE REASONS FOR NON-APPEARANCE/PARTICIPATION BEFORE THE AO ARE NOT ON RECORD. 4. THE LD. AR IN REPLY SUBMITTED THAT WHEREIN THE A SSESSMENT ORDER ITSELF IS AN EX PARTE ORDER ADMITTEDLY THE FACTS AND EVIDENCES ARE NOT ON RECORD AND WITHOUT BRINGING THOSE ON RECORD, THE OPPORTUNITY OF BEING HEARD ALONE MAY NO T SERVE ANY PURPOSE. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT IN RESPO NSE TO THE NOTICE ISSUED UNDER SECTION 148 THE ASSESSEE IS FOUND TO HAVE STATED THAT THE RETURN FO R THE YEAR UNDER CONSIDERATION WAS FILED ON 30.03.2006 AND IT WAS PROCESSED ON 21.08.2006 WHERE IN THE INCOME OF RS. 51,770/- HAD BEEN DECLARED. THE ASSESSEE WAS STATED TO BE A REGULAR INCOME TAX ASSESSEE HAVING A PAN AS AESPK0939A. THE AFORESAID NOTICE UNDER SECTION 14 8 HAD BEEN ISSUED IN VIEW OF TAX EVASION PETITION HAVING BEEN FILED WITH THE TAX AUT HORITIES. THE ASSESSEE WAS REQUIRED TO A) FURNISH DEATH CERTIFICATE OF HIS FATHER FROM WHOM GOLD OF RS.10,60,000/- WAS STATED TO HAVE BEEN INHERITED; B) COPY OF THE BANK ACCOUNT FOR THE YEAR UNDER CONSID ERATION FOR MAKING A WITHDRAWAL OF RS. 9 LAKHS INVESTED IN THE MARRIAGE OF HIS DAUGHTER; C) NAME AND ADDRESS OF THE PERSON TO WHOM GOLD WAS SOLD AND MODE OF PAYMEN T RECEIVED AGAINST THE SALE OF GOLD; AND D) ALONGWITH COPY OF THE P&L ACCOUNT OF THE CONCERN M /S KHURANA ENGINEERING TRADERS FOR THE YEAR UNDER CONSIDERATION. IT IS SEEN THAT T HE ASSESSEE PLEADED THAT THE RELEVANT DOCUMENTS COULD NOT BE FILED AS THE EARLIER COUNSEL WAS NOT COOPERATING IN HANDING OVER THE RELEVANT RECORD TO THE ASSESSEE. ACCORDINGLY DESPI TE BEING AFFORDED OPPORTUNITIES, THE RELEVANT EVIDENCE NOT HAVING BEEN FILED, ASSESSMENT WAS CONCLUDED AT THE INCOME OF RS.11,11,770/-. PAGE 3 OF 3 I.T.A .NO.-1541/DEL/2016 KAILASH NATH KHURANA VS ITO 5.1. THE ASSESSEE CHALLENGED THE ADDITIONS IN APPEA L BEFORE THE CIT(A) AND REMAINED UNREPRESENTED AS REPEATEDLY THE COUNSEL ENGAGED BY HIM SOUGHT TIME. THE EVIDENCES WERE STATED TO HAVE BEEN PROVIDED TO THE COUNSEL. ACCOR DINGLY, CONSIDERING THE OVERALL FACTUAL MATRIX AND THE SUBMISSIONS OF THE PARTIES BEFORE TH E BENCH, IT IS CONSIDERED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE CIT(A) DIRECTING THE SAID AUTHORITY TO GIVE OPPORTUNITY TO THE ASSESSEE TO PLACE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM AND AFTER FOLLOWING THE PROCEDURAL REQUIREMENTS CONFRONT THE REMAND REPORT FILED BY THE AO IF ANY TO THE ASSESSEE AND PASS A SPEAKING ORDER IN ACCORDAN CE WITH LAW. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS UTILIZED BY THE ASSESSEE IN GOOD FAITH AND IS NOT ABUSED. IN THE EVENTUALITY THE ASSESSEE DOES NOT PARTICIPATE FULLY AND FAIRLY IN THE PROCEEDINGS BEFORE THE LD. CIT(A), IT IS MADE CLEAR THAT THE SAID AUTHORITY WO ULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 TH OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI