Sh. Sukhdev Singh, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 155/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8908 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 18-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: INDERJIT PAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.155(ASR)/2015 ASSESSMENT YEAR:2002-03 PAN: AAR PG0226H S. SUKHDEV SINGH VS. INCOME-TAX OFFICER, NEAR RAILWAY CROSSING, WARD-3(2), AMRITSAR. CHHEHARTA, AMRITSAR (PB.) (APPELLANT) (RESPONDENT) APPELLANT BY:SH.INDERJIT PAL, ADVOCATE RESPONDENT BY:SH.S.S. KANWAL, DR DATE OF HEARING: 11/01/2016 DATE OF PRONOUNCEMENT: 11/01/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2002-03, AGAINST THE ORDER, DATED 29.01.2015, PASSED BY THE LD. CIT(A), AMRITSAR. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE APPELLATE ORDER PASSED BY THE WORTHY C IT(A) U/S 250(6) OF THE INCOME-TAX ACT, 1961 IS ILLEGAL, ARBI TRARY AND CONTRARY TO THE FACTS ON RECORDS AND THIS ILLEGALIT Y PERVADES ALL OTHER GROUNDS OF APPEAL. 2. THAT THE WORTHY CIT(A) HAS ACTED IN POST HASTE M ANNER WHILE DECIDING APPEAL EX-PARTE WITHOUT AFFORDING REASONAB LE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THAT THE LD. AO HAS REOPENED THE ASSESSMENT IN P OST HASTE MANNER WITHOUT GOING THROUGH THE RETURN FOILED BY T HE APPELLANT AND AS SUCH BELIEF FORMED BY HIM IS NOT R ELEVANT TO FIGURES AVAILABLE IN APPELLANTS RETURN FILED FOR T HIS PARTICULAR ASSESSMENT YEAR AND THE AO DID NOT CONDUCT HIS OWN INVESTIGATIONS TO SATISFY HIMSELF ABOUT THE CORRECT NESS OF PARTICULARS BEFORE REASONS RECORDED, WHICH IS TOTAL LY ERRONEOUS AND UNTENABLE. THE REASONS RECORDED FOR REOPENING ARE VAGUE AND THERE IS NO LIVE NEXUS BETW EEN THE ITSS(A) NO.155/ASR/2015 2 REASONS RECORDED AND THE INCOME ESCAPING ASSESSMENT AND THE WORTHY CIT(A) HAS IMPLIEDLY APPROVED IT WITHOU T ADJUDICATE ON THIS GROUND OF APPEAL AND TO THAT EXT ENT THE ORDER OF THE WORTHY CIT(A) IS TOTALLY CONTRARY TO T HE PRINCIPLE OF NATURAL JUSTICE AS WELL AS DOCTRINE OF AUDI ALTR EM PARTUM. 4. THAT THE APPELLANT WAS PREVENTED BY GOOD AND SUF FICIENT CAUSE FROM ATTENDING THE INCOME TAX PROCEEDINGS BE CAUSE NEITHER ANY NOTICE U/S 142(1) BY HIM AND NOR ANY AF FIXTURE HAD BEEN MADE IN HIS HOUSE PREMISES MENTIONED IN ASSESSMENT ORDER. ISSUANCE AND SERVICE OF A VALID N OTICE IN A PRE-REQUISITE FOR FRAMING ASSESSMENT/REASSESSMENT A ND THE WORTHY CIT(A) HAS IMPLIEDLY APPROVED IT WITHOUT ADJ UDICATE ON THIS GROUND OF APPEAL. 5. THAT THE AO HAS ERRED ON FACTS AND IN LAW TO MAK E THE ASSESSMENT/REASSESSMENT IN AS MUCH AS THE JURISDICT ION OVER THE APPELLANTS CASE VESTS WITH WARD 5(4), AMR ITSAR, WHERE HIS PAN EXISTS AND HE HAS BEEN FILED HIS RETU RNS OF INCOME THERE AND AO HAS RUSHED THROUGH THE PROCEEDI NGS EVEN ON LACK OF JURISDICTION AND THE WORTHY CIT(A) HAS IMPLIEDLY APPROVED IT WITHOUT ADJUDICATE ON THIS GR OUND OF APPEAL. 6. THAT IN VIEW OF THE ABOVE LEGAL INFIRMITY, AO HA S RECORDED THE REASONS IN LEGAL VACUUM IN ABSENCE OF ORIGINAL RETU RN WHICH WAS WITH THE AO, WARD-5(4), AMRITSAR WITH WHOM THE LEGALLY CORRECT LAY AND THE WORTHY CIT(A) HAS IMPLIEDLY APP ROVED IT WITHOUT ADJUDICATE ON THIS GROUND OF APPEAL. 7. THAT THE APPELLANT HAS POSSESSED PROPER EVIDENCE TO EXPLAIN THE PURCHASE OF IMPUGNED PLOT AT RS.350450/- ON EXAMINATION OF THE SAME MADE WILL STAND TO BE DELET ED. 8. THAT THE AO HAS ACTED POST HASTE IN FRAMING EXPA RTE ASSESSMENT WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND ACCORDINGLY THE AP PELLANT WAS PREVENTED BY SUFFICIENT CAUSE IN NOT BEING ABLE TO REPRESENT HIS CASE AND THE WORTHY CIT(A) HAS IMPLIE DLY APPROVED IT WITHOUT ADJUDICATE ON THIS GROUND OF AP PEAL. 2. GROUND NO. 1 IS GENERAL. ITSS(A) NO.155/ASR/2015 3 3. AS PER GROUND NO.2, AS ALSO ARGUED BY THE LD. C OUNSEL FOR THE ASSESSEE, THE LD. CIT(A) ERRED IN DECIDING THE ASS ESSEES APPEAL EX-PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 4. AS PER PARA-3 OF THE IMPUGNED ORDER, THE LD. CIT (A) OBSERVED, ON WHICH OBSERVATION, THE LD. DR HAS STRONGLY RELIED, THAT THE ASSESSEE DID NOT COMPLY WITH THE OPPORTUNITY NOTICES ISSUED TO H IM, AS FOLLOWS: SL. NO. NOTICE DT. FIXATION DT. MODE OF SERVICE REMARKS NARRATING FATE 1 07.02.2014 21.02.2015 N/S FILED APPLICATION FOR ADJOURNMENT. 2. 09.10.2014 16.10.2014 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 3. 20.11.2014 03.12.2014 REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 4. 04.12.2014 17.12.2014 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 5. 12.01.2015 28.01.2015 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 5. A PERUSAL OF THE 4 TH COLUMN OF THE ABOVE TABLE SHOWS THAT NONE OF THE NOTICES ISSUED TO THE ASSESSEE WERE SERVED ON T HE ASSESSEE. INSPITE THEREOF, THE LD. CIT(A) HAS EXPRESSED THE VIEW THA T THE ASSESSEE IS NOT INTERESTED IN PROSECUTING HIS APPEAL. NOW, OBVIOUS LY, WHEN NONE OF THE NOTICES WAS SERVED ON THE ASSESSEE, THE ASSESSEE CA NNOT BE FAULTED FOR NOT APPEARING BEFORE THE LD. CIT(A). ITSS(A) NO.155/ASR/2015 4 6. BESIDES, THE LD. CIT(A) HAS ALSO NOT GONE INTO T HE MERITS OF THE CASE, AND HAS MERELY DISMISSED IT SUMMARILY, WHICH HE OUGHT NOT TO HAVE DONE. 7. IN THE INTEREST OF JUSTICE, THEREFORE, THE MATTE R IS REMITTED TO THE LD. CIT(A) TO BE DECIDED ON MERIT IN ACCORDANCE WITH LA W, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE . THE ASSESSEE, NOT DOUBT, SHALL CO-OPERATE IN THE PROCEEDINGS BEFORE T HE LD. CIT(A). 6. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2016 SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 11/01/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:S. SUKHDEV SINGH, AMRITSAR. 2. THE ITO, WARD 3(2), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.