Jaswant Singh Mann, HUF, Chandigarh V. ITO, Chandigarh

ITA 172/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77069 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 19-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: A K JINDAL
• Keywords: Rule of consistency; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 172/CHD/2014 ASSESSMENT YEAR: 2007-08 JASWANT SINGH MANN HUF VS. THE I.T.O, H.NO. 266,SECTOR 35-A WARD 4(4) CHANDIGARH CHANDIGARH PAN NO. ANCPK1655K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. JINDAL RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 19/05/2014 DATE OF PRONOUNCEMENT : 21.05.2014 ORDER PER T.R.SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31/12/2013 OF CIT(APPEALS), CHANDIGARH 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS:- 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING T HE ADDITION OF RS. 88,97,365/- MERELY ON THE GROUND TH AT THE APPELLANT HAS NOT RAISED ANY ADDITIONAL GROUND OF A PPEAL AS PERMITTED BY ITAT. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN RESTORING T HE ADDITION OF RS. 88,97,365/- MADE BY A.O. THOUGH ACC EPTING THE ORDER OF CIT(A) DT. 28.01.2010 IN FAVOUR OF ASS ESSEE ON VARIOUS ISSUES WHICH LED TO IMPUGNED ADDITION. 2 3. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN RECORDING INCONSISTENT FINDING BY HOLDING THAT FINDINGS OF EA RLIER CIT(A)ARE CORRECT AND AT THE SAME TIME REJECTING TH E RELIEF ALLOWED BY EARLIER CIT(A). 4. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING T HE ADDITION WITHOUT CONSIDERING THE ARGUMENTS RAISED A ND ORDERS PASSED U/S 143 (3) IN THE CASE OF APPELLANT FOR EARLIER YEARS ACCEPTING THE AGRICULTURAL INCOME AS DECLARED AND HENCE THE ORDER OF A.O. & CIT(A) ARE B AD IN LAW ON THE PRINCIPLE OF CONSISTENCY. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT IN THIS CASE ASSESSEE HAS DECLARED CERTAIN AGRICULTURAL INCOME AND ONLY A SMA LL PART WAS ACCEPTED AS AGRICULTURE INCOME AND BALANCE WAS ADDED TO THE INC OME OF THE ASSESSEE AS INCOME FROM OTHER SOURCES. WHEN THE ASSESSEE FILED APPEAL BEFORE CIT(A), THE ASSESSEE WAS ALLOWED RELIEF BY ACCEPTING THE WHOLE AGRICULTURAL INCOME. THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL AND THE TR IBUNAL IN ITA NO. 1168/CHD/2010 HAD ADJUDICATED THE ISSUE VIDE PARAS 5 TO 7, WHICH ARE AS UNDER:- 5. ON PERUSAL OF THE RECORD AND THE ORDERS OF THE ASSESSING OFFICER AND CIT (APPEALS) WE FIND THAT TH E ADDITION MADE IN THE PRESENT CASE WAS TOTALING RS.88,97,365/ -. THE ASSESSEE HAD RAISED GROUNDS OF APPEAL NOS. 1 TO 9 B EFORE THE CIT (APPEALS) WHICH ARE INCORPORATED UNDER PARA 2 A T PAGES 2 TO 4 OF THE APPELLATE ORDER AND THE SAME ARE NOT BEING REPRODUCED FOR THE SAKE OF BREVITY. THE PERUSAL OF THE SAID GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE THE CIT (APPEALS) REFLECTS THE SAID GROUNDS OF APPEAL BEING ARGUMENTATIVE AND WERE IN THE FORM OF SUBMISSION OF THE ASSESSEE ON VARIOUS ASPECTS OF THE ASSESSMENT MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE HAD FAILED TO RAISE SPECIFIC GROUND OF APPEAL AGAINST THE ADDITION OF RS.88,97,365/-. 3 6. THE LEARNED A.R. FOR THE ASSESSEE HAD FAIRLY ADM ITTED TO THE ABOVE SAID OMISSION. THE CIT (APPEALS) PROCEED ED TO DISPOSE OF THE APPEAL BY OBSERVING VIDE PARA 4 AS U NDER: 4. SINCE THE GROUNDS ARE NOT VERY SPECIFIC, I WOUL D ADDRESS THE ISSUES TAKEN UP ON THE ASSESSMENT ORDER WHICH LED TO THE ADDITION OF RS.8897365. 7. IN THE ABSENCE OF SPECIFIC GROUND OF APPEAL RAIS ED BY THE ASSESSEE AND IN VIEW OF THE ADMISSION OF THE LE ARNED A.R. FOR THE ASSESSEE WE DEEM IT FIT TO RESTORE THE ISSU E BACK TO THE FILE OF THE CIT (APPEALS) TO ADJUDICATE THE ISSUES RAISED BY THE ASSESSEE WHICH ARE AGAINST THE NON-COMPLIANCE O F PROCEDURE UNDER SECTION 142(3) OF THE ACT AND THE R ELIANCE ON VARIOUS AFFIDAVITS ETC. THE ASSESSEE IS AT LIBERTY TO RAISE ANY ADDITIONAL GROUND OF APPEAL IF SO ADVISED. THE CIT (APPEALS) SHALL DECIDE THE APPEAL DE-NOVO IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASS ESSEE. THE GROUND NO.1 RAISED BY THE REVENUE IS THUS ALLOW ED FOR STATISTICAL PURPOSES. WE ARE NOT ADDRESSING THE IS SUE ON THE MERITS OF DELETION MADE BY THE CIT (APPEALS). 4. WHEN THE MATTER WAS TAKEN UP IN THE FRESH APPELL ATE PROCEEDINGS BY THE CIT(A), THE LD. REPRESENTATIVE OF THE ASSESSEE FIL ED A LETTER IN WHICH INTER ALIA CONTAINED FOLLOWING SUBMISSION:- THAT WE REITERATE THE SUBMISSIONS / REPLIES MADE E ARLIER BEFORE THIS COURT, WHEN THIS APPEAL CAME UP FOR HEA RING BEFORE THIS COURT AND ON LATER HEARINGS, TILL THIS APPEAL WAS DECIDED FOR THE FIRST TIME BY THIS COURT. WE ARE RE -SUBMITTING THE COPY OF THE PRINCIPAL SUBMISSIONS SUBMITTED EAR LIER BEFORE THIS COURT. WE HAVE NOTHING MORE, THAN THE E ARLIER SUBMISSIONS, TO SAY. 5. ON THE BASIS OF ABOVE SUBMISSIONS, THE LD. CIT(A ) OBSERVED THAT SINCE ASSESSEE HAS NOTHING MORE TO SAY THAN HIS EARLIER S UBMISSIONS, THEREFORE, POSITION REMAINS THAT SAME GROUND REMAINED BEFORE H IM AS WAS BEFORE HIS PREDECESSOR AND, THEREFORE, NO RELIEF COULD BE GIV EN IN THE ABSENCE OF ANY SPECIFIC GROUND. ACCORDINGLY, HE REJECTED THE APPE AL OF THE ASSESSEE. 4 6. IN THE PRESENT APPEAL BEFORE US, LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT IN FACT THE COUNSEL OF THE ASSESSEE GOT A WRON G IMPRESSION DURING THE HEARING OF THE APPEAL BEFORE CIT(A) THAT APPEAL WA S BEING ALLOWED AND THAT IS WHY HE GAVE THE SUBMISSIONS NOTED BY LD. CIT(A). H E FILED A COPY OF LETTER WHICH WAS FILED BEFORE CIT(A) AND POINTED OUT THAT LAST LINE CONTAINING WE HAVE NOTHING MORE THAN THE EARLIER SUBMISSION TO SA Y WAS ADDED AT THE LAST MINUTE WHEN THE COUNSEL ENTERTAINED THE IMPRESSION THAT APPEAL WAS BEING ALLOWED. AN AFFIDAVIT HAS ALSO BEEN FILED IN THIS RESPECT. HE CONTENDED THAT THIS IMPRESSION WAS ENTERTAINED BECAUSE IN THE EARLIER R OUND THE ASSESSEE WAS SUCCESSFUL BEFORE CIT(A). MOREOVER THE COUNSEL WHO APPEARED BEFORE THE CIT(A) IS NOT REGULARLY DEALING WITH THE TAX MATTER S SO HE CANNOT UNDERSTAND THE IMPORTANCE OF RAISING THE APPROPRIATE GROUNDS. THER EFORE, IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RESTORED TO THE FILE O F ASSESSING OFFICER FOR TAKING APPROPRIATE GROUNDS. 7. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDE R OF CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. THE AFFIDAVIT OF THE ASSESSEE READS AS UNDER:- AFFIDAVIT .. THAT THE APPEAL OF MY HUF FOR THE ASSESSMENT YEARS 2007-08 WERE REPRESENTED BY MY PREVIOUS COUNSELS SH. AJAY JAGGA ADVOCATE BEFORE THE HONBLE ITAT AND SH. AJAY JAGGA ADVOCATE AND SH. SANJAY ARORA CA BEFORE THE HONBLE CIT APPEALS, CHA NDIGARH. THAT THE FIRST APPEAL WAS DECIDED IN MY FAVOUR AND THEREAFTER THE DEPARTMENT FILED AN APPEAL BEFORE THE HONBLE ITAT, CHANDIGARH, WHICH WAS REMANDED BACK TO THE HONBLE CIT APPEALS, CHANDIGARH, FOR DECIDING THE MATTER AFRESH, BY ADJU DICATING THE ISSUES RAISED WHICH ARE AGAINST THE NON COMPLIANCE OF PROCEDURE UNDER SECTION 142(3) AND THE RELIANCE ON VARIOUS AF FIDAVITS ETC. WE WERE ALSO GIVEN THE LIBERTY TO RAISE ANY ADDITIONAL GROUNDS OF 5 APPEALS, IF SO ADVISED. (PARA 7 OF THE ORDER OF HON BLE ITAT). IT WAS ALSO MENTIONED THAT THE CIT(APPEALS) SHALL DECI DE THE APPEAL DE NOVO IN ACCORDANCE WITH LAW AFTER GIVING REASONA BLE OPPORTUNITY. THAT DURING HEARING ON 30.12.2013, WE RELIED UPON T HE SUBMISSIONS MADE EARLIER AT THE FIRST INSTANCE, WHI CH INCLUDED NON FOLLOWING OF THE PROCEDURE U/S 142(3) OF THE INCOME TAX ACT, RELIANCE ON AFFIDAVITS. THAT NO ADDITIONAL GROUND O F APPEAL WAS FILED BEFORE CIT APPEAL AS MY COUNSEL DURING DISCUS SION WITH HONBLE CIT APPEAL GOT THE IMPRESSION THAT APPEAL I S BEING DISPOSED OFF IMMEDIATELY WITHOUT ANY FURTHER REQUIR EMENT AS ALL THE GROUNDS OF APPEAL ARE ALREADY ON RECORD. THE MA TTER WAS NOT DECIDED DE-NOVO BY CIT APPEALS AS DIRECTED BY ITAT BUT THE APPEAL WAS REJECTED ON THE TECHNICAL GROUNDS. . 8. THE ABOVE MAKES IT CLEAR THAT ASSESSEE DID NOT F ILE ANY FRESH GROUND UNDER THE WRONG IMPRESSION. WE ARE OF THE OPINION THAT J USTICE CANNOT BE DENIED ON TECHNICAL GROUND, THEREFORE, IN THE INTEREST OF JUS TICE WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO HIS FILE FO R REEXAMINATION OF THE ISSUE AFTER PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE FOR RAISING APPROPRIATE GROUND, IF ANY. THE ASSESSEE IS ALSO DIRECTED TO TH E CAREFUL WHILE MAKING HIS REPRESENTATION BEFORE THE LD. CIT(A). 9. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2014. SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 21 ST MAY, 2014 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6