Shri Dharam Pal, Faridabad V. ITO, Faridabad

ITA 1840/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7817 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-03-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APPLICATION REJECTED
• Assessee Lawyers: V K GUPTA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1840/DE L/2014 (ASSESSMENT YEAR-2000-01) DHARAM PAL, C/O-VIJAY KUMAR GUPTA, ADVOCATE, OPP. JAIN MANDIR, MAIN BAZAR, BALLABHGARH, FARIDABAD-121004 PAN-BQTPS6381Q (APPELLANT) VS ITO, WARD-II(4), FARIDABAD (RESPONDENT) A SSESSEE BY SH. V.K.GUPTA, ADV. R EVENUE BY APPLICATION REJECTED ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 26/08/2013 OF CIT(A), FARIDABAD PERTAINING TO 2000 01 ASSESSMENT YEAR ON THE FOLLOWING TWO GROUNDS RAISED BEFORE US:- 1. THAT THE LD.CIT(A), FARIDABAD HAS NOT APPRECIATED THE TRUE SUBMISSIONS MADE BEFORE HIM AND HAS ERRED BY NOT AL LOWING THE AMENDED GROUNDS OF APPEAL MADE BEFORE HIM IN THE PR ESENT CASE. 2. THAT THE LD.CIT(A), FARIDABAD HAS GROSSLY ERRED BY NOT DECIDING THE APPLICATION UNDER RULE 46A[1][D] OF THE INCOME TAX RULES, 1962 TO TAKE UP EVIDENCES/ DOCUMENTS ON RECORD AND CONSIDER THOSE WHILE DECIDING APPEAL BEFORE HIM. 2. THE REVENUE MOVED AN ADJOURNMENT PETITION STATIN G THAT THE LD. SR. DR IS ON LEAVE. NO ONE WAS PRESENT IN SUPPORT OF THE PETI TION MOVED. ON GOING THROUGH THE SAME, IT IS ALSO SEEN THAT APART FROM CARRYING SOME INDECIPHERABLE INITIAL IT NEITHER ADDRESSES THE NAME NOR THE DESIGNATION OF T HE PERSON PETITIONING FOR TIME. DATE OF HEARING 14.03.2016 DATE OF PRONOUNCEMENT 05.05.2016 I.T.A .NO.-1840/DEL/2014 PAGE 2 OF 5 THE MOVING OF THE PETITION IN SUCH A CASUAL WAY IS NOT APPROPRIATE. MOREOVER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND HE ARING THE SUBMISSIONS OF THE LD. AR IT WAS CONSIDERED APPROPRIATE TO PROCEED WIT H THE PRESENT APPEAL EX-PARTE QUA THE REVENUE RESPONDENT ON MERIT. 3. ADDRESSING THE ABOVE MENTIONED 2 GROUNDS THE LD. AR INVITED ATTENTION TO THE FACT THAT THE ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 144. BEFORE THE CIT(A) THE ASSESSEE FILED AMENDED GROUNDS ON 21.02. 2011, AND THESE ARE REPRODUCED IN PARA 3.1 BY THE CIT(A). INVITING ATTE NTION TO PARA 3.2 OF THE IMPUGNED ORDER, IT WAS SUBMITTED THAT THE CIT(A) RE JECTING THE ADMISSION OF ADDITIONAL GROUNDS HOLDING THAT NO NEW FRESH FACT J USTIFYING THEIR ADMISSION PROCEEDED TO DECIDE THE GROUNDS ORIGINALLY FILED IN STEAD. ADDRESSING THE REASONS NECESSITATING THE RAISING OF ADDITIONAL GROUNDS, I T WAS SUBMITTED THAT THE GROUNDS WERE REQUIRED TO BE AMENDED IN VIEW OF THE FACT THA T SUBSEQUENT TO THE FILING OF THE ORIGINAL GROUNDS THE ASSESSEE BECAME AWARE OF THE J UDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF CIT VERSUS GHANSHYAM DAS (HUF ) (2009) 224 CTR 522 (SC). AS A RESULT OF THIS THE GROUNDS HAD TO BE AMENDED. IT WAS ALSO THE SUBMISSION THAT FRESH EVIDENCES IN SUPPORT OF THE CLAIM HAD TO BE FILED WHICH WERE ALSO REJECTED BY THE CIT(A). IN THE CIRCUMSTANCES IT WA S HIS LIMITED PRAYER THAT THE REVENUE MAY BE DIRECTED TO DECIDE THE ISSUE IN ACCO RDANCE WITH LAW TAKING INTO CONSIDERATION THE RELEVANT FACTS AND EVIDENCES. 4. THE RELEVANT FACTS OF THE CASE ARE THAT AS PER I NFORMATION RECEIVED FROM THE LAND ACQUISITION OFFICER, HUDA, FARIDABAD FOR THE L AND BELONGING TO THE ASSESSEE AT VILLAGE-ANKHIR, FARIDABAD WAS ACQUIRED BY HUDA E NHANCED COMPENSATION I.T.A .NO.-1840/DEL/2014 PAGE 3 OF 5 AMOUNTING TO RS.9,41,856/- WAS PAID TO THE ASSESSEE . DESPITE ISSUANCE OF NOTICE TO THE ASSESSEE, RETURN WAS NOT FILED LEADING TO TH E PASSING OF THE EX-PARTE ORDER BY THE AO. AS RESULT OF WHICH TOTAL INCOME OF THE ASS ESSEE WAS ASSESSED AT RS.9,81,860/-. THE ASSESSEE ASSAILED THIS BEFORE TH E CIT(A) VIDE GROUNDS FILED ON 26/08/2013. THESE GROUNDS WERE SUBSEQUENTLY SOUGH T TO BE AMENDED ON 21.02.2011. CONSIDERING THE LIMITED PRAYER OF THE A SSESSEE WHO HAS SUBMITTED THAT THE GROUNDS WERE REQUIRED TO BE MODIFIED IN VI EW OF THE JUDGEMENT OF THE APEX COURT IN THE CASE OF CIT VERSUS GHANSHYAM DAS HUF ( CITED SUPRA). I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES O F THE CASE, THE LD. CIT(A), FARIDABAD SHOULD HAVE ADMITTED THE AMENDED GROUNDS AND SHOULD NOT HAVE PROCEEDED ON A HYPER TECHNICAL ISSUE BY REFUSING TO PERMIT THE ASSESSEE TO AMEND THE GROUNDS FILED. THE LD. COMMISSIONER SHOULD HAV E TAKEN NOTE OF THE FACT THAT THIS WAS THE FIRST APPEAL AGAINST THE ASSESSMENT OR DER AND THERE WAS NO REASONABLE GROUND ON THE BASIS OF WHICH THE GROUNDS COULD NOT HAVE BEEN AMENDED BEFORE THE CIT(A). THE JUDGEMENTS RELIED U PON BY THE CIT(A) NAMELY JUTE CORPORATION OF INDIA VS CIT [1991] 187 ITR 688 (SC) AND OTHERS PROCEED ENTIRELY ON DIFFERENT SETS OF FACTS AND CIRCUMSTANC ES. THE SAID DECISIONS ARE A PRECEDENT TO BE CONSIDERED WHILE DECIDING WHETHER A PARTY CAN BE ALLOWED TO RAISE ANY ISSUE BEFORE THE TRIBUNAL ESPECIALLY AN ISSUE W AS NEVER AGITATED BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE AO. THE REL IANCE PLACED UPON THOSE DECISIONS IN THE FACTS OF THE PRESENT CASE IS ENTIR ELY MISCONCEIVED. ACCORDINGLY BEING OF THE VIEW THAT BEFORE THE FIRST APPELLATE A UTHORITY THE ASSESSEE WAS AT LIBERTY TO RAISE ANY GROUND IN SUPPORT OF ITS CLAIM BEFORE THE AO. THE LD. I.T.A .NO.-1840/DEL/2014 PAGE 4 OF 5 COMMISSIONER WAS REQUIRED UNDER LAW TO DECIDE THE S AME. I FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE SA ID ORDER CANNOT BE UPHELD AND THE ISSUE HAS TO BE RESTORED BACK TO THE FILE OF TH E CIT(A). ADDRESSING THIS ASPECT THE LD. AR SUBMITTED THAT THE PROCEEDINGS BEFORE TH E AO WERE EX-PARTE PROCEEDINGS AS THE AO HAS PASSED AN ORDER U/S 144 O F THE INCOME TAX ACT, 1961. ACCORDINGLY, IN THE CIRCUMSTANCES, IT WOULD BE MORE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE AO. CONSIDERING THE MATERIAL AVAI LABLE ON RECORD THE SAID PRAYER WAS FOUND TO BE CORRECT AND JUSTIFIED ON RECORD. IN THE ABSENCE OF ANY REPRESENTATION ON THE PART OF THE REVENUE, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IT IS APPROPRIA TE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE FILE OF AO WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS GRANTED LIBERTY TO FILE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM WHICH ADMITTEDLY IT COULD N OT FILE. WHILE SO DIRECTING IT IS HOPED THAT THE OPPORTUNITY PROVIDED TO THE ASSESSEE IN GOOD FAITH IS NOT ABUSED AND THE ASSESSEE UTILIZES THE OPPORTUNITY BY PROVID ING EFFECTIVE REPRESENTATION BEFORE THE AO AS FAILING WHICH THE AO WOULD BE AT L IBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 O F MAY, 2016. SD/- (DIVA SINGH) JUD ICIAL MEMBER DATED:05/05/2016 *AMIT KUMAR* I.T.A .NO.-1840/DEL/2014 PAGE 5 OF 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIS TANT REGISTRAR ITAT NEW DELHI