Shri Amritsingh J. Bindra, Nashik V. ITO, Central Circle-1, Nashik

ITA 1724/PUN/2013

• Counselvise Citation: 172424514 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 06-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Principle of natural justice
• Section: 6; 132; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS.1713 TO 1716/PN/2013 (ASSESSMENT YEARS: 2002-03, 2003-04, 2006-07 & 2007- 08) SHRI DARSHANSINGH A. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: AGKPB9502A . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NOS.1717 TO 1720/PN/2013 (ASSESSMENT YEARS: 2002-03, 2003-04, 2006-07 & 2007- 08) SHRI JAGDISHSINGH A. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: AEJPB4641R . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NO.1721/PN/2013 (ASSESSMENT YEAR: 2007-08) SMT. SARVINDERKAUR J. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: AGJPB0371E . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NO.1722/PN/2013 (ASSESSMENT YEAR: 2007-08) SHRI MONTYSINGH D. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: AEJPB4642N . APPELLANT ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 2 VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NO.1723/PN/2013 (ASSESSMENT YEAR: 2007-08) SMT. PARAMJEETKAUR D. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: AFXPB7440R . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NO.1724/PN/2013 (ASSESSMENT YEAR: 2007-08) SHRI AMRITSINGH J. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: ALUPB3841N . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ITA NO.1725/PN/2013 (ASSESSMENT YEAR: 2007-08) SHRI RAJPALSINGH J. BINDRA AMRIT VILLA, NASHIK PUNE ROAD, NASHIK 422101 PAN: APXPB7546Q . APPELLANT VS. THE INCOME TAX OFFICER, CENTRAL CIRCLE 1, NASHIK . RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI A.K. MODI DATE OF HEARING : 17-12-2014 DATE OF PRONOUNCEMENT : 17-12-2014 ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 3 ORDER PER SUSHMA CHOWLA, JM: THIS BUNCH OF APPEALS RELATING TO DIFFERENT ASSESSEES ARE A GAINST SEPARATE ORDERS OF CIT(A)-II, NASHIK DATED 26.06.2013 RE LATING TO ASSESSMENT YEARS 2002-03, 2003-04, 2006-07 AND 2007-0 8 IN CASE OF SHRI DARSHANSINGH A. BINDRA AND SHRI JAGDISHSINGH A. BINDRA AND RELATING TO ASSESSMENT YEAR 2007-08 IN THE CASE OF SMT. SARVINDERKAUR J. BINDRA, SHRI MONTYSINGH D. BINDRA, SMT. PARAMJEETKAUR D. B INDRA, SHRI AMRITSINGH J. BINDRA AND SHRI RAJPALSINGH J. BINDRA, ALL AG AINST THE ORDERS PASSED UNDER SECTION 154 OF THE INCOME TAX ACT BY THE CIT(A). 2. THOUGH THE CAPTIONED APPEALS PERTAIN TO DIFFERENT ASS ESSEES BUT SIMILAR ISSUE WAS RAISED AND WERE HEARD TOGETHER AND ARE BEING ADJUDICATED BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CO NVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS IN ITA NO.1713/PN/2013 TO ADJUDICATE THE ISSUE. 3. THE ASSESSEE IN ITA NO.1713/PN/2013 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL AND THE SAME WERE RAISED IN OTHER APPEALS ALSO:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE RECTIFICAT ION APPLICATION FILED BEFORE HIM MISCONSTRUING THAT SAME IS NOT MAINT AINABLE SANS ANY MISTAKES APPARENT FROM RECORDS AND A DEBAT ABLE ISSUE. THE ACTION OF THE LD. CIT(A) HAS RESULTED INTO TAXATION OF THE SAME INCOME TWICE. THIS IS OPPOSED TO PRINCIPLES OF TAXATION. IT BE HELD ACCORDINGLY. 2. THE APPELLANT CRAVES / LEAVE TO ADD, AMEND OR ALTER AN Y OF THE ABOVE GROUNDS OF APPEAL. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE APPLICATION UNDER SECTION 154 OF THE ACT WA S MOVED BEFORE THE CIT(A) FOR THE ADJUSTMENT OF THE UNEXPLAINED INVESTMEN T ASSESSED ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 4 IN THE RESPECTIVE HANDS AGAINST THE INCOME DECLARED BY T HE ASSESSEE. IT WAS FURTHER POINTED OUT BY THE LEARNED AUTHORIZED RE PRESENTATIVE FOR THE ASSESSEE THAT THE CIT(A) WHILE PASSING THE ORIGINAL ORD ER IN APPEAL, HAD NOT ADJUDICATED THE ISSUE AND THE SAME WAS RAISED BEFORE CIT(A) BY WAY OF RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STAT ED THAT THE SAID ORDER REJECTING THE RECTIFICATION APPLICATION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT WAS PASSED BY THE CIT(A) WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVEN UE POINTED OUT THAT NO SUCH GROUND OF APPEAL WAS RAISED BEFO RE THE CIT(A) AND THE ISSUE RAISED BY THE ASSESSEE OF SETTING OFF OF THE UNDISCLOSED INCOME AGAINST THE INCOME DECLARED BY THE ASSESSEE WAS NOT AMENABLE TO THE TO THE PROVISIONS OF SECTION 154 OF THE ACT. IT WAS ALSO STRESSED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE THAT NO PURPOSE WOULD BE SERVED BY SENDING BACK THE ISSUE TO T HE FILE OF CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FACTS OF THE PRESENT CASE ARE THAT SEARCH OPERATIO N UNDER SECTION 132 OF THE ACT WERE CARRIED OUT AT THE PREMISES OF THE ASSESSEE, CONSEQUENT TO WHICH, CERTAIN INCOME WAS DISCLOSED BY THE ASSESSEE. THE CLAIM OF THE ASSESSEE WAS THAT THE ADDITIONAL INCOME O FFERED DURING THE COURSE OF SEARCH WAS DECLARED IN THE RESPECT IVE RETURNS OF INCOME FILED IN THE RESPECTIVE ASSESSMENT YEARS. HOWEVER, THE ASSESSING OFFICER MADE CERTAIN ADDITIONS IN THE HANDS OF TH E ASSESSEE. THE NEXT PLEA OF THE ASSESSEE RAISED WAS THAT SUCH UND ISCLOSED INCOME ASSESSED IN THE HANDS OF THE ASSESSEE WAS TO BE SET O FF AGAINST THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE UNDER SECTION 1 32(4) OF THE ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 5 ACT, WHICH IN TURN, WAS DECLARED IN THE RETURNS OF INCOME. HOWEVER, NO SUCH PLEA WAS RAISED EITHER BEFORE THE ASSESSING OFFICER OR CIT(A) AND THE ISSUE WAS DECIDED IN THE FACTS OF THE CASE BY TH E ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). THE TRIBUNAL VIDE ORDER DATED 29.11.2013 HAD CONSIDERED THE ISSUE, BUT THE PLEA OF THE A SSESSEE IN THIS REGARD WAS THAT BEFORE THE TRIBUNAL, THE ISSUES WER E NOT DISPUTED AND THERE WAS NO QUESTION OF GRANTING OF RELIEF BY THE TRIB UNAL. THE ASSESSEE AFTER THE PASSING OF APPELLATE ORDER, MOVED AN A PPLICATION UNDER SECTION 154 OF THE ACT BEFORE THE CIT(A) ON THE S URMISE THAT THE ORDER OF ASSESSING OFFICER HAD MERGED WITH THE ORDER OF CI T(A). THE PLEA OF THE ASSESSEE WAS THAT A MISTAKE HAD CREPT IN THE ORDER OF C IT(A) IN NOT GIVING EFFECT TO THE ADDITIONAL INCOME OFFERED BY THE A SSESSEE AND SETTING THE SAME OFF AGAINST THE UNDISCLOSED INCOME AS SESSED IN THE HANDS OF THE ASSESSEE. THE COPY OF THE RECTIFICATION APPLICATION MOVED BY THE ASSESSEE HAS BEEN FILED ON RECORD. HOWEVE R, THE CONTENTION OF THE ASSESSEE BEFORE US WAS THAT THE CIT(A ) HAD NOT GIVEN ANY OPPORTUNITY OF HEARING BEFORE DECIDING THE APPEAL AGAIN ST THE APPLICATION MOVED UNDER SECTION 154 OF THE ACT. 7. UNDER THE PROVISIONS OF SECTION 250 OF THE ACT, THE PRO CEDURE TO BE ADOPTED BY THE CIT(A) DURING APPELLATE PROCEEDINGS IS P ROVIDED. UNDER SUB-SECTION (1) OF SECTION 250 OF THE ACT, THE COMMIS SIONER SHALL FIX A DAY AND PLACE FOR THE HEARING OF THE APPEAL AN D IS TO GIVE NOTICE OF THE SAME TO THE ASSESSEE AND TO THE ASSESSIN G OFFICER AGAINST WHOSE ORDER THE APPEAL WAS PREFERRED. UNDER SUB-SECTIO N (2) OF THE SECTION 250 OF THE ACT, IT IS FURTHER PROVIDED THAT AT THE TIME OF HEARING OF THE APPEAL, THE ASSESSEE EITHER IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE AND THE ASSESSING OFFICER EITHER IN PERSON OR BY A REPRESENTATIVE, SHALL HAVE THE RIGHT TO BE HEARD. THE CI T(A) THEREAFTER, ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 6 UNDER SECTION 250(4) OF THE ACT IS EMPOWERED TO MAKE FUR THER ENQUIRIES AS HE THINKS FIT OR MAY DIRECT ASSESSING OFFICER TO MAKE SUCH FURTHER ENQUIRIES AND REPORT THE RESULT OF THE SAME TO T HE CIT(A). UNDER SUB-SECTION (5) OF SECTION 250 OF THE ACT, THE CIT(A ) IS ALSO EMPOWERED TO HEAR ANY GROUND OF APPEAL WHICH WAS NOT S PECIFIED IN THE GROUNDS OF APPEAL FILED BY THE ASSESSEE. UNDER SECTIO N 250(6) OF THE ACT, ORDER OF THE CIT(A) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION T HEREON AND THE REASONS FOR THE SAID DECISIONS. ON THE DISPOSAL OF THE APPEAL, THE CIT(A) IS TO COMMUNICATE THE ORDER PASSED BY HIM TO THE ASSESSEE AND TO THE CHIEF COMMISSIONER OR COMMISSIONER AS PER SECTION 250(7) OF THE ACT. THUS, IT IS INCUMBENT UPON THE CIT(A) TO GIVE N OTICE OF HEARING TO THE ASSESSEE AND THE ASSESSING OFFICER WHILE CO NDUCTING THE APPELLATE PROCEEDINGS. 8. FURTHER, UNDER THE PROVISIONS OF SECTION 154 OF THE ACT , WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, IN COME TAX AUTHORITY IS EMPOWERED TO AMEND ANY ORDER PASSED BY IT UNDER THE PROVISIONS OF THE ACT AND / OR AMEND ANY INTIMATION OR DE EMED INTIMATION UNDER SECTION 143(1) OF THE ACT OR AMEND ANY INT IMATION UNDER SECTION 200(A)(1) OF THE ACT. UNDER SUB-SECTION (3) OF SECTION 154 OF THE ACT, AN AMENDMENT WHICH HAS EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING THE REFUND OR OTHERWISE INCREASIN G THE LIABILITY OF THE ASSESSEE OR THE DEDUCTOR, SHALL NOT BE MADE UNLESS THE AU THORITY CONCERNED HAS GIVEN NOTICE TO THE ASSESSEE OR THE DED UCTOR AND HAS ALLOWED THE ASSESSEE OR THE DEDUCTOR A REASONABLE OPPO RTUNITY OF BEING HEARD. UNDER SUB-SECTION (4) OF SECTION 154 OF THE ACT, ORDER OF AMENDMENT SHALL BE PASSED IN WRITING BY THE INCOME TAX A UTHORITY CONCERNED. FURTHER, UNDER SECTION 154(6) WHERE THE AMEN DMENT HAS ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 7 THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING THE REFUND ALREADY MADE OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE OR THE DEDUCTOR, THEN THE ASSESSING OFFICER SHALL SERVE UPON THE ASSESSEE OR THE DEDUCTOR, A NOTICE OF DEMAND IN THE PRESCRIBED FORM S PECIFYING THE SUM PAYABLE. A PERIOD OF 4 YEARS FROM THE END OF THE FINA NCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE AMENDED WAS PASSED, HAS BEEN PROVIDED FOR CARRYING OUT THE AMENDMENT UNDER SUB-SECTION (7) TO SECTION 154 OF THE ACT. UNDER SUB-SECTION (8) OF SECTION 154 OF THE AC T, IT IS PROVIDED THAT WHERE THE APPLICATION FOR AMENDMENT HAS BE EN MADE BY THE ASSESSEE ON OR AFTER 01.06.2001, THEN SUCH INCOME T AX AUTHORITY SHALL PASS THE ORDER WITHIN A PERIOD OF 6 MONTHS FROM THE END OF MONTH IN WHICH THE APPLICATION WAS RECEIVED BY IT, IN TURN M AKING THE AMENDMENT OR REVISING TO ALLOW THE CLAIM. 9. BOTH UNDER THE PROVISIONS OF SECTION 250 OF THE ACT AN D / OR SECTION 154 OF THE ACT, BEFORE DECIDING THE APPEAL OR DISPO SING OF AN APPLICATION FOR AMENDMENT, THE CIT(A) OR INCOME TAX AUTHOR ITIES RESPECTIVELY ARE DUTY BOUND TO GIVE NOTICE TO THE ASSE SSEE AND PROVIDE REASONABLE OPPORTUNITY OF HEARING. IN THE FACTS OF THE PR ESENT CASE, WHERE THE ASSESSEE HAD MOVED AN APPLICATION FOR RECTIFICAT ION UNDER SECTION 154 OF THE ACT BEFORE THE CIT(A), THEN IT WAS NE CESSARY THAT BEFORE DISPOSING OF THE SAID APPLICATION UNDER SECTION 154 O F THE ACT, THE CIT(A) SHOULD HAVE PROVIDED A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE PRESENT SET OF APPEALS, NO SUCH OPPORTUNITY OF HEARING HAS BEEN PROVIDED BY THE CIT(A), HENCE, THE ORDE R PASSED BY THE CIT(A) SUFFERS FROM INFIRMITY. IN VIEW THEREOF AND FOLLOWING T HE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE M ATTER NEEDS TO BE RESTORED BACK TO THE FILE OF CIT(A) TO ADJUDICATE T HE ISSUE AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESS EE. ITA NOS.1713 TO 1725/PN/2013 DARSHANSINGH A BINDRA AND OTHERS 8 ACCORDINGLY, WE SET ASIDE THE ISSUE BACK TO THE FILE OF CI T(A) TO ADJUDICATE THE ISSUE OF AMENDMENT UNDER SECTION 154 OF T HE ACT AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESS EE. IN VIEW THEREOF, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 10. THE FACTS AND ISSUE IN ITA NOS.1714 TO 1725/PN/2013 ARE IDENTICAL TO THE FACTS AND ISSUE IN ITA NO.1713/PN/2013 AN D OUR DECISION IN ITA NO.1713/PN/2013 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS.1714 TO 1725/PN/2013. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 18 TH DAY OF DECEMBER, 2014. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 18 TH DECEMBER, 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE