Sh. Abdul Rashid Wani S/o. Khazir Mohd., Srinagar V. The Dy. Commissioner of Income-tax, Srinagar

ITA 167/ASR/2013

• Counselvise Citation: 16720914 RSA 2013
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 167 (ASR)/2013 ASSESSMENT YEAR: 2008-09 PAN: AAUPW8632L SH. ABDUL RASHID WANI VS. DY. COMMISSIONER OF INCOME S/O- KHAZIR MOHD., C/O- BHAT TAX, CIRCLE SRINAGAR DURANI & ASSOCIATES 207, 1 ST FLOOR YATRI BHAWAN II, DURGA NAG DAL GATE, SRINAGAR (KASHMIR) (APPELLANT) (RESPONDENT) APPELLANT BY: SH. UPENDER BHAT, CA RESPONDENT BY: SH. MAHAVIR SINGH, SR.DR DATE OF HEARING: 08.01.2014 DATE OF PRONOUNCEMENT: 09.01.2014 ORDER PER BENCH 1. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 15.01.2013 PASSED BY LEARNED COMMISSION ER OF INCOME TAX (J&K), JAMMU, FOR THE ASSESSMENT YEAR 2008-09 ON TH E FOLLOWING GROUNDS: I. THAT THE WORTHY COMMISSIONER HAVING REGARD TO THE F ACTS AND CIRCUMSTANCES OF THE CASE, HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE ASSESSMENT PASSED BY LD. D.C.I.T. U/ S 143(3) OF THE INCOME TAX ACT, IN TERMS OF SEC 263 OF THE ACT 1961 WITHOUT HEARING THE ASSESSEE & WITHOUT GIVING OPPORTUNITY O F HEARING. 2 I.T.A. NO. 167 (ASR)/2013 ASSESSMENT YEAR: 2008-09 II. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE ASSESSMENT PASSED BY LD. D.C.I.T. U/S 143(3) OF THE INCOME TAX ACT, ON THE GROUND OF NON DEDUCTION OF TDS ON PAYMENTS ON WHICH TDS WAS NOT REQUIRED TO BE DEDUCTED, IN TERMS OF SEC. 263 O F THE ACT 1961. III. IN ANY VIEW OF THE MATTER AND IN ANY CASE THE ACTIO N OF LD. CIT IN CANCELLING THE ORDER OF LD. A.O. IS BAD IN LAW, UNJ USTIFIED, ARBITRARY AND AGAINST THE FACTS AND THE CIRCUMSTANCES OF THE CASE. IV. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. FACTS NARRATED BY LEARNED CIT (J&K), JAMMU, IN T HE IMPUGNED ORDER ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFO RE THERE IS NO NEED TO REPEAT THE SAME. 3. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TOWARDS THE IMPUGNED ORDER AND STATED THAT LEARNED CIT (J&K), JAMMU, HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE OF BEING HEARD BEFORE PASSING THE IMPUGNED ORDER. THEREFORE, THE ORDER DESERVES TO BE CANCELLED. HE FURTHER STATED THAT THE LEARNED CIT (J&K), JAMMU, HAD ISSUED NOTICE, DATED 08.11.2012, TO THE ASSESSE E AND THE ASSESSEE REQUESTED FOR ADJOURNMENT WHICH WAS GRANTED TO THE ASSESSEE FOR 30.11.2012 BUT THAT WAS TOO SHORT AND WITHOUT HEARI NG TO THE ASSESSEE, LEARNED CIT (J&K), JAMMU, HAS PASSED THE IMPUGNED O RDER. HE REQUESTED THAT, IN THE INTEREST OF JUSTICE, THE ISS UE IN DISPUTE MAY BE SET 3 I.T.A. NO. 167 (ASR)/2013 ASSESSMENT YEAR: 2008-09 ASIDE TO LEARNED CIT (J&K), JAMMU, FOR DECIDING THE SAME AFRESH UNDER THE LAW, AFTER AFFORDING ADEQUATE OPPORTUNITY TO TH E ASSESSEE. 4. ON THE CONTRARY, LEARNED DR OPPOSED THE REQUEST OF LEARNED COUNSEL FOR THE ASSESSEE AND STATED THAT SUFFICIENT OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE BY LEARNED CIT (J&K), JAMMU, THEREFORE THERE IS NO NEED TO SET ASIDE THE ISSUE IN DISPUTE TO LEARNED C IT (J&K), JAMMU, FOR DECIDING THE SAME AFRESH. 5. AS PER MERIT OF THE CASE, LEARNED COUNSEL FOR TH E ASSESSEE STATED THAT THE ASSESSEE HAS GIVEN REPLY TO THE SHOW-CAUSE NOTICE DATED 08.11.2012 ON 12 TH DECEMBER, 2012, IN WHICH, THE ASSESSEE HAS STATED THAT THE COMMISSION PAYMENT OF RS. 11,82,194/- MENTIONED IN THE NOTICE ACCOUNT WAS MADE OUTSIDE INDIA AS COMMISSION TO A F OREIGN AGENT ON WHICH THERE IS NO REQUIREMENT OF DEDUCTION OF TDS. HENCE, THERE HAS NOT BEEN ANY CONTRAVENTION OF ANY SECTION OF INCOME TAX ACT, 1961. LEARNED CIT (J&K), JAMMU, HAS NOT CONSIDERED THE SAME AND D ECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE. 6. LEARNED DR STATED THAT THE REPLY DATED 12 TH DECEMBER, 2012 FILED BY THE ASSESSEE IS NOT SIGNED BY ANY PERSON, THEREFORE, IT IS MERELY A PIECE OF PAPER AND LEARNED CIT (J&K), JAMMU, HAS PA SSED THE IMPUGNED ORDER UNDER THE LAW AND SHOULD BE UPHELD. 4 I.T.A. NO. 167 (ASR)/2013 ASSESSMENT YEAR: 2008-09 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER AN D THE WRITTEN REPLY DATED 12 TH DECEMBER, 2012 FILED BY THE ASSESSEE ADDRESSED TO LEARNED CIT (J&K), JAMMU, WHICH THE ASSESSEE HAS ATTACHED AT PA GE NO. 1 OF THE PAPER BOOK. HE HAS ALSO FILED SOME OTHER DOCUMENTARY EVID ENCE FOR SUBSTANTIATING HIS VERSION. BUT KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT LEARNED CIT (J&K), JAMMU, HAS ISSUED ONLY TWO NOTICES DATED 08.11.2012 AND 30.11.2012 TO THE ASSESSEE FIXING THE CASE OF THE ASSESSEE FOR HEARING. IN OUR OPINIO N, LEARNED CIT (J&K), JAMMU, HAS NOT GIVEN SUFFICIENT TIME TO THE ASSESSE E FOR SUBSTANTIATING HIS CLAIM BEFORE HIM. AS PER THE IMPUGNED ORDER, HE HAS FIXED THE CASE FOR HEARING ON 18.12.2012 BY ISSUING NOTICE DATED 30.11 .2012 AND THE ASSESSEE FILED ITS REPLY DATED 12.12.2012, AS MENTI ONED ABOVE, BUT HE CLOSED THE HEARING OF THE PRESENT CASE ON 18.12.201 2 AND PASSED THE IMPUGNED ORDER ON 15.01.2013. HE TOOK TIME ABOUT ON E MONTH TO PASS 2 1 / 2 PAGES ORDER BUT HAS NOT GIVEN SUFFICIENT TIME TO THE ASSESSEE BEFORE MAKING THE ADDITION IN DISPUTE. IN OUR VIEW, SUCH O RDER IS NOT SUSTAINABLE IN THE EYE OF LAW AND DESERVES TO BE CANCELLED. ACC ORDINGLY, WE CANCEL THE IMPUGNED ORDER DATED 15.01.2013 PASSED BY LEARN ED CIT (J&K), JAMMU, AND IN THE INTEREST OF JUSTICE, WE SET ASID E THE ISSUE IN DISPUTE TO 5 I.T.A. NO. 167 (ASR)/2013 ASSESSMENT YEAR: 2008-09 LEARNED CIT (J&K), JAMMU, TO DECIDE THE SAME AFRESH UNDER THE LAW AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF B EING HEARD. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. ABDUL RASHID WANI S/O- KHAZIR MO HD., C/O- BHAT DURANI & ASSOCIATES 207, 1 ST FLOOR YATRI BHAWAN II, DURGA NAG DAL GATE, SRINAGAR (KASHMIR) 2. DY. COMMISSIONER OF INCOME TAX, CIRCLE SRINAGAR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.