Sh. Gurcharan Dhiman, Panchkula V. ITO, W-5, Panchkula

ITA 185/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9316 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 20-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA
• Assessee Lawyers: ATUL KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences; Set aside
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 185/CHD/2019 ASSESSMENT YEAR : 2015-16 SHRI GURCHARAN DHIMAN, C/O M/S HI-TECH POWER SYSTEMS, HOUSE NO. 968, LOWER KURARI, KALKA (PANCHKULA). VS THE ITO, WARD 5, PANCHKULA. PAN /TAN NO: ADWPD5682L APPELLANT RESPONDENT ! ASSESSEE BY : SHRI ATUL KUMAR, CA ' ! REVENUE BY : SMT. CHANDER KANTA, SR.DR # $ % DATE OF HEARING : 04.07.2019 &'() % D ATE OF PRONOUNCEMENT : 05.07.2019 )-/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 28.12.2018 OF CIT(A) -4 LUDHIANA PERTAINING TO 2015-16 ASSESSMENT YEAR HAS BEEN ASSAILED ON MER ITS AS WELL AS ON THE PRINCIPLES OF NATURAL JUSTICE ADDRESSED VIDE GROUND NO. 3 AND 4 ON WHICH THE PARTIES WERE HEARD. THESE READ AS UNDER : 3. THAT THE ORDER OF WORTHY COMMISSIONER OF INCOM E TAX (APPEALS) UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER IS AGAIN ST THE PRINCIPLES OF NATURAL JUSTICE AS THE APPELLANT HAS NOT BEEN PROVIDED WITH THE REASONABLE OPPORTUNITY OF BEING HEARD. 4. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN UPHOLDING THE ADDITION OF THE ASSESSING OFFICER AS THE APPELLANT'S SUBMISSION AND REQUEST NOT CONSIDERED BY WORTHY COMMISSIONER OF IN COME TAX (APPEALS). 2. BEFORE ADVERTING TO THE FACTS OF THE CASE, IT IS NECESSARY TO BRING OUT THE FACT THAT AT THE TIME OF HEARING, AN ADJOURNMEN T APPLICATION WAS MOVED ITA 185/CHD/2019 A.Y. 2015-16 PAGE 2 OF 3 ON BEHALF OF THE ASSESSEE REQUESTING FOR TIME TO FI LE A PAPER BOOK. HOWEVER, CONSIDERING THE FACT THAT THE IMPUGNED ORDER HAS BE EN PASSED EX-PARTE, THE ADJOURNMENT REQUEST WAS REJECTED AND THE LD. AR WAS REQUIRED TO ADDRESS THE REASONS FOR NON-REPRESENTATION BEFORE THE CIT(A ). 3. THE LD. AR SUBMITTED THAT THE ASSESSEE DID NOT R EFUSE TO PARTICIPATE IN THE PROCEEDINGS AND HAD INFACT E-MAILED HIS RESP ONSE ON 26.12.2018 TO THE CONCERNED AUTHORITY REQUESTING FOR TRANSFER OF HIS APPEAL FROM CIT(A) LUDHIANA TO CIT(A) PANCHKULA. SUPPORTING EVIDENCES WERE FILED IN SUPPORT OF THE PRAYER MADE TO THE CIT(A) LUDHIANA. 4. THE LD. SR.DR ON A PERUSAL OF THE COPY OF THE RE PLY E-MAILED TO CIT(A) LUDHIANA SUBMITTED THAT THE SAID REQUEST CANNOT BE SAID TO BE IN TERMS OF AN ARGUMENT IN SUPPORT OF THE GROUNDS RAISED BEFORE THE SAID AUTHORITY WHO ANYWAY DID NOT HAVE THE POWER TO TRANSFER. HOWE VER, IT WAS AGREED THAT IT CANNOT ALSO BE A CASE OF NON-PARTICIPATION ON THE PART OF THE ASSESSEE. IN THE CIRCUMSTANCES IT WAS HER SUBMISSI ON THAT THE MATTER MAY BE REMANDED BACK FOR AFFORDING AN OPPORTUNITY OF BE ING HEARD. 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE IT IS S EEN THAT THE CIT(A) HAS NOTED THAT ON 12.12.2018 AND 26.12.2018, DESPITE NO TICE THE ASSESSEE DID NOT PARTICIPATE. THE LD. CIT(A) INFACT RECORDS THA T THE ASSESSEE REFUSED TO RECEIVE THE NOTICE ITSELF. WE HAVE SEEN THE E-MAIL ED REPLY OF THE ASSESSEE REQUESTING FOR A TRANSFER TO CIT (A) PANCHKULA. TH US, BE THAT AS IT MAY, THE FACT IS THAT THE APPEAL OF THE ASSESSEE WAS DISMISS ED HOLDING THAT THE ASSESSEE MAY NOT BE SERIOUS IN PURSUING THE APPEAL FILED RELYING UPON THE DECISION OF THE APEX COURT IN THE CASE OF CIT V. B. N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 46L (S.C.). THE SAID D ECISION MAKING PROCESS DOES NOT HAVE STATUTORY SANCTION AS SET OUT IN SUB- SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT,1961. ADMITTEDLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS NOT BEEN PROVIDED AN EFFECTI VE OPPORTUNITY OF BEING HEARD BEFORE THE CIT(A). THE ASSESSEE, WE NOTE IGNO RANTLY AND INCORRECTLY REMAINED UNDER A BELIEF THAT HIS REQUEST FOR TRANSF ERRING OF THE APPEAL FROM ITA 185/CHD/2019 A.Y. 2015-16 PAGE 3 OF 3 CIT(A) LUDHIANA TO CIT(A) PANCHKULA WOULD PRESUMABL Y BE FIRST DECIDED. NO SUCH POWER VESTED IN THE OFFICE OF CIT(A) LUDHIA NA, AS THE REMEDY DID NOT LIE BEFORE THE SAID AUTHORITY. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTI ON TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5.1 THE ADJOURNMENT REQUEST OF THE ASSESSEE WAS REJ ECTED HOLDING; REJECTED AS PER ORDER SHEET. RESTORED TO CIT(A). SPO (SPEAKING ORDER) TO FOLLOW. THE LD. AR WAS DIRECTED TO ENSURE THAT THE ASSESS EE UTILIZES THE OPPORTUNITY FAIRLY AND FULLY AND DOES NOT ABUSE THE TRUST REPOSED AS FAILING WHICH, IT IS MADE CLEAR THAT THE LD. CIT(A) WOULD B E AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 JULY,2019 . SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR