Sh. Surmukh Singh, Mohali V. Pr. Commissioner of Income Tax - 2, Chandigarh

ITA 168/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9986 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ MISHRACIT
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.168/CHD/2016 (ASSESSMENT YEAR : 2011-12) SH.SURMUKH SINGH, VS. THE PR.C.I.T-II, HOUSE NO.142, CHANDIGARH. GURU BAHADUR NAGAR, KHARAR, MOHALI. PAN: ACBPS0735K APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI MANOJ MISHRA,CIT DR DATE OF HEARING : 23.05.2016 DATE OF PRONOUNCEMENT : 23.05.2016 O R D E R PER RANO JAIN, A.M . : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX- II, CHANDIGARH DATED 12.2.2016 FOR ASSESSMENT YEAR 2011- 12, AGAINST THE ORDER PASSED UNDER SECTION 263 OF T HE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSM ENT UNDER SECTION 143(3) WAS COMPLETED IN THIS CASE AS ON 29.11.2013. THEREAFTER A NOTICE UNDER SECTION 263 OF THE ACT DATED 15.1.2016 WAS ISSUED BY THE COMMISSIONER OF INCOME TAX, CHANDIGARH. THE CONTENTS OF THE NOTICE ARE 2 REPRODUCED IN THE ORDER OF THE COMMISSIONER OF INCO ME TAX AT PAGES 1 TO 5. THEREAFTER IT HAD BEEN NOTICE D IN THE ORDER OF THE COMMISSIONER OF INCOME TAX THAT A SHOW CAUSE WAS SENT TO THE ASSESSEE BY POST AND AS GATHE RED FROM THE OFFICIAL WEBSITE OF THE INDIA POST, THE SA ME WAS DELIVERED TO THE ASSESSEE ON 19.1.2016 BUT NEITHER THE ASSESSEE NOR ANY AUTHORIZED REPRESENTATIVE APPEARED ON THE SPECIFIED DATE I.E. 27.2.2016. IT HAS ALSO BE EN NOTED THAT NO COMMUNICATION WRITTEN OR OTHERWISE WAS RECE IVED FROM THE ASSESSEE ON OR AFTER THE APPOINTED DATE. SUBSEQUENTLY, ANOTHER OPPORTUNITY WAS OFFERED TO TH E ASSESSEE BY ISSUING LETTER ON 29.1.2016 FIXING THE CASE FOR HEARING ON 8.2.2016 AT 11.30 AM. THE ASSESSEE, HOW EVER, AGAIN FAILED TO AVAIL OPPORTUNITY AND THERE WAS NO COMPLIANCE ON THE SAID DATE ALSO. THEREAFTER THE COMMISSIONER OF INCOME TAX IN THE ABSENCE OF ANY DE TAILS OR SUBMISSIONS FILED BY THE ASSESSEE HELD THE ASSES SMENT ORDER TO BE ERRONEOUS IN SO FAR AS PREJUDICIAL TO T HE INTEREST OF REVENUE FOR THE REASONS MENTIONED IN TH E SHOW CAUSE NOTICE. IN THIS WAY, THE COMMISSIONER OF INC OME TAX CANCELLED THE ORDER UNDER SECTION 143(3) OF THE ACT DATED 29.11.2013 WITH THE DIRECTION TO THE ASSESSIN G OFFICER TO PASS AN ORDER AFRESH IN ACCORDANCE WITH LAW KEEPING IN VIEW HIS OBSERVATIONS AND AFTER ALLOWIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. AGGRIEVED BY THIS ORDER, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR TH E 3 ASSESSEE AT THE OUTSET STATED THAT THE SHOW CAUSE N OTICES WHICH HAVE BEEN MENTIONED IN THE ORDER OF THE COMMISSIONER OF INCOME TAX WERE NEVER SERVED ON HIM . HE STATED THAT THERE ARE CERTAIN FACTUAL INACCURACI ES IN THE SHOW CAUSE NOTICE AS REPRODUCED IN THE ORDER OF THE COMMISSIONER OF INCOME TAX AND HIS FURTHER ARGUMENT WAS THAT HE COULD NOT GET AN OPPORTUNITY OF BEING H EARD BEFORE THE COMMISSIONER OF INCOME TAX. THEREFORE, A PRAYER WAS MADE TO SEND THE MATTER BACK TO THE COMMISSIONER OF INCOME TAX TO HEAR THE ASSESSEE ON THE ISSUES AS RAISED BY HIM IN SHOW CAUSE NOTICE UNDER SECTION 263 OF THE ACT. AN AFFIDAVIT IN THIS REGAR D FOR NON- SERVICE OF NOTICE WAS ALSO FILED BEFORE US. 4. THE LEARNED D.R. THOUGH RELIED ON THE ORDER OF THE COMMISSIONER OF INCOME TAX, DID NOT HAVE ANY OBJECTION FOR SENDING THE MATTER BACK TO THE COMMIS SIONER OF INCOME TAX. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDER OF THE COMMISSIONER OF INCOME TAX IN VIEW OF THE AFFIDAVIT FILED BY THE ASSESSEE THAT SHOW CAUSE NOT ICE WAS NEVER SERVED UPON HIM, WE OBSERVE THAT THE ASSESSEE COULD NOT AVAIL AN OPPORTUNITY OF BEING HEARD BEFOR E THE COMMISSIONER OF INCOME TAX IN PROCEEDINGS UNDER SEC TION 263 OF THE ACT. AN OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE IS THE ESSENCE OF ANY LEGAL PROCEEDINGS AN D ALSO HAS BEEN SPECIFICALLY PROVIDED IN THE SUBSTANTIVE P ART OF THE PROVISIONS OF SECTION 263 OF THE ACT. OTHERWIS E ALSO, IT 4 IS A TRITE LAW THAT NO ADVERSE INFERENCE AGAINST TH E ASSESSEE SHOULD BE TAKEN IN THE ABSENCE OF AN OPPOR TUNITY OF BEING HEARD GIVEN TO HIM. THIS IS ALSO AGAINST THE CARDINAL PRINCIPLE OF NATURAL JUSTICE ENSHRINED IN LEGAL PARLANCE. IN VIEW OF THIS, WE FIND THAT NO PREJUDI CE WOULD BE CAUSED TO ANY OF THE PARTIES IF WE SEND THE MATT ER BACK TO THE COMMISSIONER OF INCOME TAX TO GIVE THE ASSES SEE AN OPPORTUNITY OF BEING HEARD. 6. HOWEVER, IN ORDER TO MEET THE ENDS OF JUSTICE, WE HEREBY DIRECT THE ASSESSEE TO APPEAR BEFORE THE COMMISSIONER OF INCOME TAX AS ON 25.7.2016 WITH THE COPY OF THIS ORDER AND THE COMMISSIONER OF INCOME T AX IS DIRECTED TO GIVE THE ASSESSEE A FAIR AND ADEQUATE OPPORTUNITY OF BEING HEARD IN RELATION TO THE SHOW CAUSE NOTICE ISSUED BY HIM DATED 15.1.2016. THE ASSESSEE IS FREE TO ADDUCE ANY EVIDENCE OR EXPLANATION IN THIS REGARD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF MAY, 2016. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 23 RD MAY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE D R. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5