Sh. Bachan Singh, Ludhiana V. ITO, W-1, Khanna

ITA 1651/CHANDI/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6675 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Assessee Lawyers: PANKAJ ARORAL
• Keywords: Additional evidence; Condonation of delay; Set aside
• Section: 271(1)(c); 147; 131; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO. 819,1642 & 1651/CHD/2017 / ASSESSMENT YEAR : 2009-10 SHRI BACHAN SINGH, S/O SHRI NACHHATAR SINGH, VPO-MANKI, LUDHIANA.. VS THE ITO, WARD 1, KHANNA. ./ PAN NO. : DCAPS7576E / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI PANKAJ ARORAL # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! & / DATE OF HEARING : 30.01.2019 '()* ! & / DATE OF PRONOUNCEMENT : 28.02.2019 $%/ ORDER THESE THREE APPEALS FILED BY THE ASSESSEE ARE BEING DEC IDED BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE ASSAILING THE CO RRECTNESS OF THE RESPECTIVE ORDERS OF THE CIT(A) IN 2009-10 ASSESSMENT YEAR. 2. IN ITA 819/CHD/2017 THE ASSESSEE ASSAILS THE CORRE CTNESS OF THE ORDER DATED 16/02/2017 OF CIT(A)-2 LUDHIANA PERTAINING T O 2009-10 ASSESSMENT YEAR PASSED IN THE QUANTUM PROCEEDINGS. ALON GWITH THE SAID APPEAL THE ASSESSEE ALSO CHALLENGES THE PENALTY IMPOSED U NDER SECTION 271 (1)(C) OF THE INCOME TAX ACT BY THE AO CONFIRMED IN APP EAL BY THE ORDER DATED 21.08.2017 OF CIT(A) LUDHIANA AND ALSO THE PEN ALTY IMPOSED BY THE AO U/S 271(1)(B) ALSO CONFIRMED BY CIT(A)- 2 LUDHIANA. ITA 819/CHD/2017 3. BEFORE ADDRESSING THE ISSUE ON MERITS, THE LD. AR WAS REQUIRED TO ADDRESS THE 8 DAYS DELAY POINTED OUT BY THE REGISTRY. T HE LD. AR INVITING ATTENTION TO THE CONDONATION OF DELAY APPLICATION ON RECOR D SPECIFIC PARA 2 OF THE SAME SUBMITTED THAT THE ASSESSEE IS AN ILLITERATE PERSON, UNAWARE OF THE LAW AND ITS INTRICACIES. ACCORDINGLY, SINCE HE WAS UNAW ARE OF THE PROCEDURES, THE LIMITATION OF TIME WAS NOT UNDERSTOOD BY H IM. IT WAS SUBMITTED THAT THE DELAY HAS OCCURRED ON ACCOUNT OF IGN ORANCE AND WAS ITA 819,1642&1651/CHD/2017 A.Y. 2009-10 PAGE 2 OF 5 NOT INTENTIONAL. ACCORDINGLY, IT WAS HIS PRAYER THAT CONSID ERING THE FACTS, THE SAME MAY BE CONDONED. 4. THE LD. SR.DR CONSIDERING THE APPLICATION AND THE SUBM ISSIONS HAD NO OBJECTION TO THE DELAY BEING CONDONED. 5. THE RECORD SHOWS THAT THE APPEAL FILED BY THE ASSESSE E WAS ORIGINALLY DISMISSED BY THE ORDER DATED 02.08.2017 AND IN THE LIGHT OF THE SUBMISSIONS IN MA 97/CHD/2017 DATED 16/01/2015 THE EX- PARTE ORDER WAS RECALLED. IN THE AFORESAID BACKGROUND, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES, THE DELAY OF 8 DAYS POINTED OUT BY THE RE GISTRY IS CONDONED. SAID ORDER WAS PRONOUNCED ACCEPTING THE EXPLANATION OFFER ED ON BEHALF THE ASSESSEE AND TAKING NOTE OF THE FACT THAT NO UNDUE ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE IN FILING THE PRESENT APPEAL LATE AND NO VESTED RIGHT OF THE REVENUE HAS BEEN UPSET IN CASE THE DELAY IS CONDONED. SATISFIED BY THE EXPLANATION OFFERED THE DELAY OF 8 DAYS IS CONDONED 6. IN ITA/819/CHD/2017 THE ASSESSEE ASSAILS THE IMPUGNE D ORDER FOR SUSTAINING THE ADDITION OF RS. 17,95,000/- MADE BY THE ASSE SSING OFFICER. THE RELEVANT FINDING UNDER CHALLENGE IS EXTRACTED HEREUNDER : 3.7 THE ASSESSING OFFICER HAS REPORTED THAT THE APPELLA NT HAS CLAIMED TO HAVE AGREEMENT TO SELL WITH SH. JASWANT SINGH, THE PURCH ASER WITH WHOM THE AGREEMENT TO SELL DATED 28.02.2006 WAS EXECUTED. HOWEVER, DUR ING THE COURSE OF THE REMAND PROCEEDINGS, THE APPELLANT HAS FAILED TO PRODUCE SH . JASWANT SINGH, THE PURCHASER WITH WHOM THE AGREEMENT TO SELL DATED 28.02.2006 WAS EXE CUTED AND ALSO FAILED TO PRODUCE THE WITNESS, SH. RANJIT SINGH TO SAID BIANA. THEREF ORE, ACCORDING TO THE ASSESSING OFFICERS REPORT THE CONTENTION OF THE APPELLANT WITH REGARD TO THE AMOUNT DEPOSITED IN THE BANK ACCOUNT COULD NOT BE PROVED BY THE APPELLANT. THE A PPELLANT HAS FAILED TO PRODUCE SH. JASWANT SINGH AND THE WITNESS SH. RANJIT SINGH AT T HE TIME OF ENQUIRY IS CARRIED OUT DURING REMAND REPORT ALSO IN ORDER TO PROVE ITS CON TENTION. ACCORDINGLY, IT IS HELD THAT, THE CONTENTION OF THE APPELLANT THAT THE AMOU NT DEPOSITED IN THE BANK IS ON ACCOUNT OF BIANA AMOUNT RECEIVED FROM SH.JASWANT SI NGH, AS PER AGREEMENT DATED 28.02.2006, WHICH WAS SUBSEQUENTLY FORFEITED, IS NO T ACCEPTABLE. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE PURCHASER HAS NOT FILED ANY SUIT BEFORE ANY COURT AGAINST THE HEAVY AMOUNT OF BIANA I.E. RS. 17,95,000/-, WHICH W AS FORFEITED AND RETAINED BY THE APPELLANT. AS THE APPELLANT HAS FAILED TO PRODUCE S H. JASWANT SINGH, THE PURCHASER AND SH. RANJIT SINGH, THE WITNESS ALTHOUGH THE ONUS WAS UPON THE APPELLANT TO PRODUCE THEM IN ORDER TO PROVE HIS CLAIM OF CASH DEPOSIT IN HIS BANK ACCOUNT HAS BEEN RECEIVED THROUGH SH. JASWANT SINGH. THE AO HAS ALSO REPORTED THAT SH. JASWANT SINGH HAS ALSO REFUSED TO RECEIVE THE SUMMONS ISSUED BY THIS OFFIC E, ACCORDINGLY THERE IS NO DOUBT THAT THE APPELLANT HAS MISERABLY FAILED, TO PROVE ITS CO NTENTION WITH REGARD TO THE FACT THAT HE HAS RECEIVED THE CASH DEPOSIT ON ACCOUNT OF BIAN A DATED 28.02.2006. THEREFORE, THE CREDIT OF THE CLAIM OF THE APPELLANT WITH REGAR D TO THIS BIANA COULD NOT BE ESTABLISHED BY THE APPELLANT. THEREFORE, THE ADDITI ON ON THIS ACCOUNT DESERVES TO BE SUSTAINED. 7. THE LD. AR ADDRESSING THE ABOVE FACTS SUBMITTED THAT THE ASSESSEE WAS A COPARCENARY IN A SPECIFIC PIECE OF LAND AND IN REGARD TO THE S AID LAND THE ASSESSEE HAD ENTERED INTO AN AGREEMENT TO SELL ON 28/02/2006 WITH SH. JASWANT SINGH. SINCE IN TERMS OF THE SAID AGREEMENT, T HE TRANSACTION ITA 819,1642&1651/CHD/2017 A.Y. 2009-10 PAGE 3 OF 5 COULD NOT BE COMPLETED, THE AMOUNT OFFERED AS BIANA WAS FO RFEITED BY THE ASSESSEE. IN THE REMAND PROCEEDINGS, IT WAS SUBMITTED T HAT THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE THE SAID PERSON, HOWEVER, SUMMONS WERE ISSUED AND SENT BY THE ASSESSING OFFICER AND WERE ALSO GO T SERVED UPON THE SAID PERSON BY THE DEPARTMENT. THUS, IT WAS HIS PRAYE R THAT IN THE PECULIAR FACTS, THE ASSESSEE CANNOT BE SADDLED WITH THE A DDITION. IT WAS ALSO HIS SUBMISSION THAT SUBSEQUENTLY THE SPECIFIC PIECE OF LAND WAS SOLD BY THE ASSESSEE. 8. THE SR.DR MS. CHANDRAKANTA RELIED UPON THE IMPUGNED OR DER. HOWEVER SHE WAS UNABLE TO STATE AS TO WHETHER THE AS SESSEE OWNED THE SPECIFIC PIECE OF LAND AT THE RELEVANT POINT OF TIME OR NOT A S THE WHOLE STORY REVOLVES AROUND THE EXISTENCE OF THE SAID FACT. 9. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT IS SEEN THAT QUA THE SPECIFIC ADDITION THE FOLLOW ING FACTS HAVE BEEN NOTED BY THE ASSESSING OFFICER IN THE REMAND REPORT MADE AVAILAB LE : 'THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE A S REGARDS THE DEPOSIT OF BIANA AMOUNT OF RS. 17,95,000/-. FROM THE PERUSAL OF THE BANK STATEMENT, IT IS OBSERVED THAT THE ASSESSEE HAS STARTED DEPOSITING CASH FROM 24.10.2008 ONWARDS, WHEREAS HE HAS RECEIVED RS. 17,95,000/- ON 28.02.2006 I.E. AFT ER A GAP OF ALMOST THREE YEARS. WHEN POINTED OUT TO THE ASSESSEE AS TO WHY THE AMOUNT OF RS. 17,95,000/- WAS NOT DEPOSITED IN THE BANK ACCOUNT FROM 28.02.2006 FOR ALMOST THRE E YEARS, IT HAS BEEN STATED BY THE ASSESSEE THAT THE SAID AMOUNT WAS KEPT AT HOME AS T HE BANK ACCOUNT WAS NOT OPERATIONAL AND HE WAS NOT SURE THAT THE BIANA WILL BE FORFEITED. FROM THE PERUSAL OF BANK STATEMENT, IT IS OBSERVED THAT RS. 19,50,000/- HAS BEEN DEPOSITED ON 04.12.2008, WHICH WILL PROBABLY BE THE SALE PROCEEDS OF TWO SAL E DEEDS FOR RS.11,25,000/- AND RS.8,25,000/- DATED 19.12.2008. HOWEVER, TO AUTHENTICATE THE FACTS, THE ASSESSEE WA S GIVEN AN OPPORTUNITY TO PRODUCE SH. JASWANT SINGH (THE PURCHASER) WITH WHOM THE AGR EEMENT TO SELL DATED 28.02.2006 WAS EXECUTED AND BIANA AMOUNT WAS LATER ON FORFEITE D DUE TO NON-REGISTRATION OF SALE DEED. SINCE THE ONUS WAS UPON THE ASSESSEE TO PRODU CE THE PURCHASER SH. JASWANT SINGH, HE WAS ASKED TO PRODUCE HIM ON 18.07.2016, FOR EXAM INATION. HOWEVER, THE ASSESSEE FAILED TO PRODUCE HIM ON THE SAID DATE I.E. 18.08.2 016 ON THE PLEA THAT SH. JASWANT SINGH COULD N'T BE CONTACTED. HE WAS AGAIN ASKED TO PRODUCE HIM ON 20.07.2016, BUT AGAIN HE FAILED TO PRODUCE. THE ASSESSEE HAS BEEN G IVEN LAST OPPORTUNITY TO PRODUCE SH. JASWANT SINGH ON 22.07.2016. ON 22.07.2016, THE ASS ESSEE WAS ASKED TO PRODUCE EITHER SH. JASWANT SINGH, THE PURCHASER OR SH. RANJ IT SINGH, ON OF THE WITNESS TO THE BIANA DATED 28.02.2006, ON 25.07.2016. HOWEVER, THE ASSESSEE DID NOT PRODUCE THE PURCHASER SH. JASWANT SINGH OR SH. RANJIT SINGH, TH E WITNESS TO THE BIANA, ON THE GROUND THAT THEY ARE RELUCTANT TO COME FORWARD. IT MAY NOT BE OUT OF PLACE TO MENTION HERE THAT THIS OFFICE HAS ALSO ISSUED SUMMONS U/S 1 31 OF THE ACT, 1961 DATED 20.7.2016 TO SH. JASWANT SINGH, THE PURCHASER TO AT TEND THIS OFFICE ON 25.07.2016. HOWEVER, SH. JASWANT SINGH HAS REFUSED TO RECEIVE T HE SUMMONS AS PER THE REPORT OF THE NOTICE SERVER. IN VIEW OF THE ABOVE, SINCE THE ASSESSEE HAS FAILED TO PRODUCE SH. JASWANT SINGH, THE PURCHASER WITH WHOM AGREEMENT TO SELL DATED 28. 02.2006 WAS EXECUTED AND ALSO FAILED TO PRODUCE THE WITNESS, SH. RANJIT SINGH TO THE SAID BIANA, THE CONTENTION OF THE ASSESSEE THAT THE AMOUNT DEPOSITED IN THE BANK IS O N ACCOUNT BIANA AMOUNT RECEIVED FROM SH. JASWANT SINGH, AS PER AGREEMENT DATED 28.0 2.2016, WHICH WAS SUBSEQUENTLY FORFEITED, IS NOT ACCEPTABLE AT ALL, PARTICULARLY K EEPING IN VIEW THE FACT THAT, THE ITA 819,1642&1651/CHD/2017 A.Y. 2009-10 PAGE 4 OF 5 PURCHASER HAS NOT FILED ANY SUIT BEFORE ANY COURT A GAINST THE HEAVY AMOUNT OF BIANA I.E. RS. 17,95,000/- WHICH WAS FORFEITED AND RETAINED BY THE ASSESSEE. FURTHER, THE ASSESSEE HAS FAILED TO PRODUCE SHRI JA SWANT SINGH, THE PURCHASER AND SHRI RANJIT SINGH, THE WITNESS ALTHOUGH THE ONUS WA S UPON THE ASSESSEE TO PRODUCE THEM. 10. IT IS SEEN THAT ON THE RELEVANT POINT THAT IS WHETHER THE ASS ESSEE WAS OWNER OF A SPECIFIC PIECE OF LAND AT THE RELEVANT TIME OR NO T, IT IS SEEN THAT THERE IS NO DISCUSSION IN THE ORDER AS TO WHETHER THE A SSESSEE AT THE RELEVANT POINT OF TIME OWNED THE SPECIFIC PIECE OF LAND. TH E LD.AR IN HIS SUBMISSIONS HAS STATED THAT THE ASSESSEE WAS A COPARC ENER IN VARIOUS PIECES OF LAND, HOWEVER, HE WAS ALSO UNABLE TO ADDRESS WHIC H SPECIFIC PIECE OF LAND WAS A SUBJECT MATTER OF AGREEMENT TO SELL AND ALSO THE SPECIFIC SHARE OF THE ASSESSEE IN THE SPECIFIC PIECE OF LAND. I T IS ALSO SEEN THAT NO EFFORT HAS BEEN MADE BY THE ASSESSING OFFICER TO ESTABLISH WHO SH. JASWANT SINGH IS OR ALSO FOR THAT MATTER THE TWO WITNESS ES TO THE AGREEMENT. IN THE CIRCUMSTANCES WHERE THE ASSESSEE HA S FORFEITED THE BIANA OFFERED BY JASWANT SINGH AS PER THE ALLEGED CLAIM PUT FORTH, THE OCCASION FOR THE ASSESSEE TO BE CAPABLE OF PRODUCING THE SAID PERSON DOES NOT ARISE. THE CLAIM HAVING BEEN PUT FORTH IN THE REMAND PROCEEDINGS IDEALLY SHOULD HAVE BEEN EXAMINED AND CARRIED TO ITS LOGICA L QUESTION. THE ASSESSING OFFICER AFTER HAVING ISSUED NOTICE TO THE SAID PER SON UNDER SECTION 131 SHOULD HAVE CARRIED OUT AN ENQUIRY AND CARR IED THE ACTION TO ITS LOGICAL CONCLUSION. IT IS SEEN THAT THE ASSESSING OFFICER H AS ALSO IN THE AFORESAID EXTRACT REFERRED TO HEREINABOVE HAS REFERRED T O THE DATES ON WHICH THE AMOUNTS ARE FOUND DEPOSITED IN THE SAID BANK A CCOUNT WHICH ASPECT ALSO THE ASSESSEE HAS NOT ADDRESSED IN THE PRE SENT PROCEEDINGS. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IMP UGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ADDRESSING THE R ELEVANT FACTS. THE ASSESSEE IN ITS OWN INTERESTS IS ADVISED TO MAKE FULL A ND PROPER REPRESENTATION BEFORE THE AO AS IN THE EVENT OF ABUSE O F THE TRUST REPOSED, AO WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 11. IN THE RESULT, ITA 819/CHD/2017 IS ALLOWED FOR STATISTICAL PURPOS ES. ITA-1642/CHD/2017 12. THE ISSUES RAISED IN THE PRESENT APPEAL ARE DEPENDE NT UPON THE QUANTUM ORDER PASSED BY THE ASSESSING OFFICER. ACCORDINGL Y, THE PENALTY IMPOSED IN SECTION 271(1)(C) AND CONFIRMED IN APPEAL BY THE CI T(A) ITA 819,1642&1651/CHD/2017 A.Y. 2009-10 PAGE 5 OF 5 BECOMES INFRUCTUOUS IN VIEW OF THE ORDER PASSED IN THE Q UANTUM PROCEEDINGS. THE ASSESSING OFFICER IS FREE TO TAKE A VIEW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AFTER THE PASSING OF THE ORDER IN THE QUANTUM PROCEEDINGS. THE ORDERS ARE SET ASIDE. 13. THE APPEAL IS DISMISSED AS INFRUCTUOUS. ITA-1651/CHD/ 2017 14. THE ASSESSEE HEREIN PRAYS FOR QUASHING THE PENALTY IM POSED UNDER SECTION 271(1)(B) OF THE ACT. A PERUSAL OF THE RECORD SHOW S THAT THE PENALTY HAS BEEN IMPOSED WHEREIN THE ASSESSEE DID NOT P ARTICIPATE IN THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER LEADING TO THE PASSING OF THE ORDER UNDER SECTION 144 READ WITH SECTION 147 OF THE ACT. A PERUSAL OF THE RECORD SHOWS THAT THE CIT(A) IN THE QUANTUM PRO CEEDINGS ADMITTED FRESH EVIDENCE TAKING NOTE OF THE FACT THAT THERE WERE J USTIFIABLE REASONS FOR THE ASSESSEE TO SUBMIT ADDITIONAL EVIDENCE. ON A PERUS AL OF THE PENALTY ORDER, IT IS SEEN THAT THE SPECIFIC DATE FOR NON-COMPLIANCE HAS NOT BEEN NOTED. ACCORDINGLY, IN THE PECULIAR FACTS TAKING FURTHER NOT ICE OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE WHERE THE A SSESSEE HAS PLEADED THAT BEING ILLITERATE AND UNABLE TO UNDERSTAND TH E INTRICACIES OF LAW WHERE ADMITTEDLY HE HAS NOT EVEN UNDERSTOOD THE D ELAY IN FILING OF THE APPEAL ETC. ACCORDINGLY, THE PENALTY IMPOSED UNDER SECTIO N 271 (1) (B) IS QUASHED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 15. IN THE RESULT, ITA/819/CHD/2017 IS ALLOWED FOR STATISTIC AL PURPOSES, ITA/1642/CHD/2017 IS DISMISSED AS INFRUCTUOUS AND ITA/1651/CHD/2017 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02.2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE 7. (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR