SHRI GURPAL , PGAHWARA V. INCOME TAX OFICER, WARD(1), PHAGWARA

ITA 171/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6932 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VEDPAL SINGH
• Assessee Lawyers: Y K SUD
• Keywords: Unexplained cash credit; Opportunity of being heard; Non passing of speaking order; Set aside; Audi alteram partem
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH SMC AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT ITA NO.171/ASR./2018 : ASSTT. YEAR : 2009-10 SH. GURPAL(FSO) THROUGH L/H SMT. DARSHAN KAUR, M/S Y.K. SUD & CO. C.AS., AMBIKA TOWERS, 4 TH FLOOR, POLICE LINES ROAD, JALANDHAR VS INCOME TAX OFFICER, WARD-1, PHAGWARA (APPELLANT) (RESPONDENT) PAN NO. AAXPG7134N ASSESSEE BY : SH. Y. K. SUD, CA REVENUE BY : SH. VED PA L SINGH, DR DATE OF HEARING : 08.01.2019 DATE OF PRONOUNCEMENT : 08.01.2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 27.09.2016 OF LD. CIT(A)-2,JALANDHAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE CIT(A) WAS NOT JUSTIFIED IN PASSING TH E EX- PARTE ORDER WITHOUT GIVING ANY PROPER OPPORTUNITY T O THE ASSESSEE. 2. THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE A DDITION OF RS.1599600/- ON ACCOUNT OF UNEXPLAINED CREDITS I N THE BANK ACCOUNT OF THE ASSESSEE MADE THE AO. 3. THAT THE ORDER OF CIT(A) IS NON SPEAKING ORDER A ND HAS NOT BEEN PASSED ON MERITS OF THE CASE. 4. THE ASSESSMENT ORDER PASSED BY THE AO IS ON THE DEAD PERSON THEREFORE THE SAME IS ILLEGAL AND VOID ABINI TO. ITA NO. 171/ASR./2018 GURPAL 2 5. THAT THE ORDER OF CIT(A) AND AO ARE AGAINST THE LAW AND FACTS OF THE CASE. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE DECEASED ASSESSEE FILED THE RETURN OF INCOME ON 08.06.2009 DECLARING AN INC OME OF RS.2,06,630/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LAT ER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE AO FRAMED THE ASS ESSMENT AT AN INCOME OF RS.18,27,018/-. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EX-PARTE IN LIMINE. 5. NOW THE LEGAL HEIR OF THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS NOT GIVE N ANY OPPORTUNITY OF BEING HEARD AND NOT DECIDED THE ISSUE ON MERIT. 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE AND DISMISSED THE SAME IN LIMINE ALTHOUGH HE HAS MENTIONED THAT THE APPEAL WAS DECID ED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BUT THERE IS NO DISCUSSION ON THE MERIT OF THE CASE. IT IS ALSO NOTICED THAT THE LD. CIT(A) ME NTIONED THAT THE APPEAL WAS FIXED ON 09.09.2016 AND THE CASE WAS ADJOURNED TO 2 0.09.2016, THE ORDER HAS BEEN PASSED ON 27.09.2016. HOWEVER, THERE IS NO DIS CUSSION ON THE MERIT OF THE CASE. IT IS WELL SETTLED THAT NOBODY SHOULD BE COND EMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. I, THEREFORE, BY CONSIDERING THE TOTALITY OF THE ITA NO. 171/ASR./2018 GURPAL 3 FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE B ACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER P ROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 08/01/2019) SD/- (N. K. SAINI) VICE PRESIDENT DATED: 08/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR