Girdhari Lal Chawla, Delhi V. ACIT, New Delhi

ITA 1670/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7051 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: AASISH JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148

Judgement Text

I.T.A .NO.-1670/DEL/2016 GIRDHARI LAL CHAWLA VS ACIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1670/DEL/2016 (ASSESSMENT YEAR-2008-09) GIRDHARI LAL CHAWLA, C-93, PREET VIHAR, DELHI-110092. PAN-ADDPC7437K ( APPELLANT) VS ACIT, CIRCLE-36(1), NEW DELHI. (RESPONDENT) ASSESSEE BY SH. VED JAIN, ADV. & SH. AASISH JAIN, ADV. REVENUE BY S H. F.R.MEENA, SR.DR DATE OF HEARING 10 . 11 .2016 DATE OF PRONOUNCEMENT 09 . 01 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 26.02.2016 OF CIT(A)-19, NEW DELHI PERT AINING TO 200809 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER, AT THE TIME OF HEARING, T HE PARTIES WERE HEARD ONLY IN RESPECT OF GROUND NO. 2 WHICH READS AS UNDER:- 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER, WITH OUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD IN CLEAR VIOLAT ION OF PRINCIPLE OF NATURAL JUSTICE. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE RETURNED AN INCOME OF RS.20,84,940/- ON 13.10.2008. THE SAID RETURN WAS PROCESSED UNDER SECTION 143(1). THE ASSESSEE WAS STATED TO BE AN INDIVIDUAL ENGAGED IN THE BUSINESS OF REAL ESTATE AND BUILDER AND HAD ALSO DISCLOSED INCOME FROM BUSINESS AND PRO FESSION AND INCOME FROM CAPITAL GAIN AND INCOME FROM OTHER SOURCES. THE ASSESSEE WAS FOU ND TO HAVE MADE PAYMENTS IN CASH FOR PURCHASE OF FOLLOWING LANDS. ACCORDINGLY NOTICE UN DER SECTION 148 WAS ISSUED TO THE ASSESSEE ON 30.03.2013. FOLLOWING SPECIFIC LANDS WERE FOUND TO BE PURCHASED:- KHASRA NO.279/8, UGARSAIN NAGAR, RISHIKESH OF RS.12 ,50,000 (ABOVE RS.20000/-) IN CASH INSTEAD OF CHEQUE DURING FY 200 7-08; AND KHASRA NO.279/8, PROPERTY NO.123/1, SHARE MAUJA, RI SHIKESH, DEHRADOON OF RS.2,60,000/- (ABOVE RS.20000/-) IN CASH INSTEAD OF CHEQUE DURING FY 2007-08. PAGE 2 OF 4 I.T.A .NO.-1670/DEL/2016 GIRDHARI LAL CHAWLA VS ACIT 2.1. AS PER RECORD, THE CASH PAYMENTS WERE JUSTIFIE D AS NECESSARY PAYMENTS AS BAYANA AND IT WAS EXPLAINED THAT HAD THE ASSESSEE NOT PAI D THE AMOUNT IN CASH THE DEALS WOULD NOT HAVE BEEN FINALIZED. IT WAS SUBMITTED THAT THE VERY NATURE OF LAND TRANSACTIONS OFTEN REQUIRED THAT IN CASE OF INSISTENCE OF THE OTHER PARTY THE INITIAL PAYMENT IS OFTEN MADE IN CASH AS IT IS NOT ACCEPTED BY CHEQUE. HOWEVER, THE SAID EXPLANATION WAS NOT FOUND ACCEPTABLE AND ADDITION OF THE SAID AMOUNT WAS MADE IN THE HANDS OF THE ASSESS EE. 3. THE ISSUE TRAVELLED IN APPEAL BEFORE THE CIT(A). BEFORE THE SAID AUTHORITY, FRESH EVIDENCES BY WAY OF AFFIDAVIT OF SH. LALIT MOHAN GO EL ACKNOWLEDGING THE FACT THAT THE PAYMENT WAS MADE ON SUNDAY ON HIS INSISTENCE IS STATED TO H AVE BEEN FILED. THIS WAS REMANDED BY THE CIT(A) TO THE ASSESSING OFFICER. DURING THE RE MAND PROCEEDINGS, THE ASSESSEE INITIALLY DID NOT APPEAR HOWEVER A LETTER WAS FILED ON 21.01.2016 REQUESTING FOR CERTIFIED COPIES OF REASONS RECORDED BY THE ASSESSING OFFICER AT THE TIME OF RE OPENING THE ASSESSMENT. SUBSEQUENTLY THE ASSESSEE CHANGED HIS COUNSEL AND AGAIN SOUGHT CERTI FIED COPY OF REASONS RECORDED. IN THE CIRCUMSTANCES, THE ASSESSING OFFICER WAS OF THE VIE W THAT THE ASSESSEE IS ONLY SEEKING ADJOURNMENTS AND DOES NOT WANT TO ADDRESS THE EVIDE NCES. AS A RESULT OF THIS, THE ADDITION WAS CONFIRMED BY THE CIT(A). 4. IN THE AFORESAID BACKGROUND, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT HEARING THE ASSESSEE. ADDRESSING THE NON- REPRESENTATION ON BEHALF OF THE ASSESSEE IN THE REM AND PROCEEDINGS, IT WAS SUBMITTED THAT THE EARLIER COUNSEL OF THE ASSESSEE FOR WHATEVER REASON S DID NOT APPEAR AND THE ASSESSEE HAD TO CHANGE HIS COUNSEL. ACCORDINGLY, THE IMPUGNED ORDER IT WAS SUBMITTED HAS BEEN PASSED WITHOUT HEARING THE ASSESSEE. IT WAS HIS PRAYER TH AT THE ISSUE MAY BE SET-ASIDE IN ORDER TO PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD. IT IS ALSO HIS REQUEST THAT THE ASSESSEE HAS BEEN REQUESTING FOR COPY OF REASONS RE CORDED FOR REOPENING THE ASSESSMENT AND DIRECTIONS MAY BE GIVEN TO MAKE THE REASONS AVAILAB LE TO THE ASSESSEE. 5. THE LD. SR.DR HAD NO OBJECTION TO THE REMAND OF THE PROCEEDINGS TO THE CIT(A) IN ORDER TO AFFORD AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. HOWEVER, IT WAS HIS SUBMISSION THAT PAGE 3 OF 4 I.T.A .NO.-1670/DEL/2016 GIRDHARI LAL CHAWLA VS ACIT THE OCCASION TO ASK FOR THE CERTIFIED COPY OF REASO NS RECORDED DOES NOT ARISE AS THE ISSUE IS NOT BEFORE THE CIT(A). 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND THE PERUS ED THE MATERIAL AVAILABLE ON RECORD. ADDRESSING FIRST THE REQUEST FOR ISSUING DIRECTION TO THE REVENUE TO MAKE A COPY OF THE REASONS RECORDED AVAILABLE TO THE ASSESSEE, I AM CONFIDENT THAT THE TAX AUTHORITIES ARE WELL-VERSED WITH THE SETTLED LEGAL POSITION THAT THE JURISDICTIONAL ISSUE CAN BE RAISED BY THE ASSESSEE AT ANY STAGE. IN THE AFORE-SAID SETTLED LEGAL POSITION, I DO NOT UNDERSTAND WHY THE DEPARTMENT IS RELUCTANT TO MAKE THE COPY OF THE CERTIFIED REASONS RECORDED AVAILABLE TO THE ASSESSEE. THE LD. CIT(A) IS DIRECTED TO PROVIDE THE ASSESSEE CERT IFIED COPY OF THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. 6.1. ADDRESSING THE PRAYER IN SUPPORT OF GROUND NO. 2 RAISED IN THE PRESENT PROCEEDINGS, I FIND ON CONSIDERING THE RECORD AND IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE. IT IS SEEN FROM PARA 7 OF THE IMPUGNED ORDER THAT THE COUNSEL REPRESENTING THE ASSESSEE WA S CHANGED ON 11.02.2016 AND HE AGAIN SOUGHT COPY OF REASONS RECORDED. ON THE NEXT DATE GIVEN I.E 25.02.2016, NO COMPLIANCE WAS FOUND TO HAVE BEEN MADE BEFORE THE ASSESSING OFFICE R IN THE REMAND PROCEEDINGS. THE IMPUGNED ORDER IS DATED 26/02/2016. THE FACT THAT NO COMPLIANCE WAS MADE ON 25.02.2016 IN THE REMAND PROCEEDINGS COULD BE A FACT WHICH COULD ONLY BE RECORDED AT THE EARLIEST AT THE END OF THE DAY AND PRESUMABLY OVERNIGHT WAS MADE AVAILA BLE TO THE LD.CIT(A) ON THE NEXT WORKING DATE I.E. 26.02.2016 ON WHICH DATE ITSELF, THE IMP UGNED ORDER WAS PASSED. THE INORDINATE HASTE DISPLAYED BY THE DEPARTMENT IN THE PRESENT PR OCEEDINGS GIVES TRUTH AND CREDENCE TO THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE THAT THE ORDER WAS PASSED WITHOUT HEARING THE ASSESSEE. IN THE FACE OF THIS BLATANT SELF EVIDENT PERVERSITY ON RECORD, THE IMPUGNED ORDER IS SET ASIDE IN ORDER TO AFFORD OPPO RTUNITY TO THE REVENUE TO ADDRESS THE SAID DEFICIENCY. THE ISSUE ACCORDINGLY IS RESTORED BACK TO THE FIL E OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. PAGE 4 OF 4 I.T.A .NO.-1670/DEL/2016 GIRDHARI LAL CHAWLA VS ACIT 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 TH OF JANUARY 2017. 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