SHRI HARMINDER SINGH CORRECT NAME HARMANDEP SINGH , AMRITSAR V. INCOME TAX OFFICER WARD 5(2), AMRITSAR

ITA 186/ASR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3616 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-08-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM DEB
• Assessee Lawyers: P N ARORA
• Keywords: Unexplained investment
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I. T. A. NO. 186/(ASR)/2018 ASSESSMENT YEAR: 2010-11 HARMINDER SINGH (CORRECT NAME IS HARMANDEEP SINGH) 13-VILLAGE BHAINI GILLAN, AMRITSAR-143001 PUNJAB [PAN: EIJPS 3979H] VS. INCOME TAX OFFICER WARD 5(2)-AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. N. ARORA (ADV.) RESPONDENT BY: SH. GAUTAM DEB (D.R.) DATE OF HEARING: 10.08.2018 DATE OF PRONOUNCEMENT: 20.08.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, AMRITSAR (CIT (A) FOR SHORT) DATED 29.07.2017, DISMISSING THE ASSESSEES APPEAL CONTESTING HIS ASS ESSMENT U/S. 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DA TED 10.03.2016 FOR ASSESSMENT YEAR (AY) 2010-11. 2. AT THE OUTSET, IT WAS CLAIMED BY THE LD. DEPARTM ENTAL REPRESENTATIVE (DR), THAT THE INSTANT APPEAL IS DELAYED IN-AS-MUCH AS IT MENTIONS THE DATE OF COMMUNICATION OF THE ORDER UNDER APPEAL (AT PARA 9 OF FORM 36) INCORRECTLY, I.E., AT 26.3.2018, WHILE THE IMPUGNED ORDER IS DATED 29.07. 2017. UPON THIS, IT WAS ITA NO. 186/ASR/2018 (AY 2010-11) HARMANDEEP SINGH V. ITO 2 EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE, SH. P.N. ARORA, ADVOCATE, THAT THERE IS NO DELAY IN PREFERRING THE INSTANT APPEAL, FILED ON 05.04.2018. THE LONG PERIOD IN COMMUNICATION OF THE IMPUGNED ORDER, RAISING VALID DOUBTS, IS FOR THE REASON THAT THE SAME WAS IN FACT NEVER SERVED ON THE ASSESSEE, AND IT WAS ONLY ON THE ASSESSEE BEING PURSUED BY THE REVENUE FOR TAX RECOVERY, THAT HE BECAME AWARE OF THE PASSING OF THE ORDER BY THE LD. CIT(A), WHOSE OFFIC E WAS APPROACHED (ON 08.03.2018) AND A COPY OF THE IMPUGNED ORDER OBTAIN ED. HE FURTHER SOUGHT TO SUBSTANTIATE HIS CLAIM PER A LETTER DATED 08.03.201 8 ADDRESSED TO THE LD. CIT(A), PLACING IT ON RECORD, WITH THE FACTS AFORE-STATED B EING AVERRED IN THE FORM OF AN AFFIDAVIT DATED 25.07.2018 BY THE ASSESSEE. THE SAM E BEING NOT REBUTTED BY THE LD. DR IN ANY MANNER, THERE IS IN FACT NO DELAY IN FILI NG THE APPEAL WHICH NEEDS TO BE CONDONED. THE APPEAL WAS ADMITTED AND THE HEARING I N THE MATTER PROCEEDED WITH. 3 BEFORE US, THE ASSESSEES MAIN PLEA IN THE INSTAN T PROCEEDINGS WAS THAT THE APPELLATE ORDER IS AN EX PARTE ORDER, SO CAUSED IN VIEW OF THE ASSESSEE NOT ATTEN DING TO ANY OF THE 4 NOTICES OF HEARING PER WHICH OPPORT UNITY OF HEARING WAS SOUGHT TO BE PROVIDED TO THE ASSESSEE-APPELLANT, SO THAT THE LD. CIT(A) INVOKED THE DOCTRINE OF VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT , AND DISMISSED THE ASSESSEES APPEAL IN LIMINE FOR WANT OF PROSECUTION, RELYING ON THE DECISION IN THE CASE OF ESTATE OF LATE TUKOJI RAO HOLKAR V. CWT [1997] 223 ITR 480 (MP) AND CIT V. MULTIPLAN INDIAN LTD. [1991] 38 ITD 320 (DELHI). THE SAME, IT WAS CONTENDED, IS INCORRECT AS NO NOTICES WERE I N FACT RECEIVED BY THE ASSESSEE. THE ASSESSEE (THROUGH HIS COUNSEL), CLAIMING THAT N O NOTICES WERE IN FACT RECEIVED BY HIM, THE RECORD OF THE APPELLATE PROCEEDINGS WAS CALLED FOR BY THE BENCH. AS IT TRANSPIRES FROM THE PERUSAL THEREOF, ONLY ONE, THE FIRST NOTICE (DATED 03.04.2017) WAS SENT BY THE OFFICE OF THE LD. CIT(A) TO THE ADD RESS STATED IN FORM 35 FOR COMMUNICATION OF THE NOTICES. THE SAME, HOWEVER, WA S NOT IN THE NAME OF THE ITA NO. 186/ASR/2018 (AY 2010-11) HARMANDEEP SINGH V. ITO 3 ASSESSEE, BUT IN THE NAME OF HARMINDER SINGH, IN WHOSE NAME IN FACT THE IMPUGNED ORDER IS ALSO ISSUED. THE NEXT THREE NOTIC ES WERE AT THE ASSESSEES RESIDENTIAL ADDRESS AT VILLAGE BHAINI GILLAN, AMRIT SAR. WHILE THE FIRST OF THESE NOTICES (DATED 24.04.2017) WAS RETURNED WITH THE PO STAL REMARKS AS TO THE ASSESSEE HAVING LEFT THE VILLAGE, THE FOLLOWING TWO STATE OF THE ASSESSEE HAVING REFUSED THE NOTICE. THE ASSESSEE CONTENDS OF THE SERVICE BEING NOT PROPER AS THE SAME WAS NOT AT THE ADDRESS SPECIFIED IN FORM 36 (FOR COMMUNICAT ION OF THE NOTICES, ETC.) AND, BESIDES, THE ASSESSEE BEING CONVEYED (TO THE REVENU E) OF HAVING LEFT THE VILLAGE, THE ISSUE OF THE SUBSEQUENT TWO NOTICES AT THE VILL AGE ADDRESS COULD NOT BE REGARDED AS A GRANT OF OPPORTUNITY. THE IMPUGNED ORDER BE AC CORDINGLY SET ASIDE, PARTICULARLY CONSIDERING THAT THE ASSESSMENT IS ALS O A BEST JUDGMENT ASSESSMENT. RATHER, IT WAS CONTENDED BY SH. ARORA, THAT THE MAT TER, SETTING ASIDE THE IMPUGNED ORDER, BE RESTORED TO THE FILE OF THE AO IN VIEW OF HIS ORDER BEING ALSO AN EX PARTE ORDER; THE ASSESSEE HAVING BEEN SLAPPED WITH A HUGE DEMAND, WHICH WOULD CONTINUE TO OBTAIN WHERE THE MATTER IS RESTORED TO THE FIRST APPELLATE AUTHORITY. THE LD. DR WOULD, ON THE OTHER HAND, SUBMIT THAT THE AP PEAL, UNDER THE CIRCUMSTANCES, BE RESTORED TO THE FILE OF THE FIRST APPELLATE AUTH ORITY FOR A DECISION ON MERITS. 4 WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. OUR FIRST OBSERVATION IS THAT THE ASSESSEEE, WHO H AS INVOKED THE APPELLATE JURISDICTION OF THE LD. CIT(A) AS WELL AS THE TRIBU NAL, HAS THROUGHOUT EXHIBITED IRRESPONSIBILITY, IF NOT A CARELESS ATTITUDE. THE A SSESSMENT WAS FRAMED U/S. 144 ONLY FOR THE REASON THAT THE ASSESSING OFFICER (AO), AS OBSERVED AT PG. 6 OF HIS ORDER, BEING CONSTRAINED TO DO SO, I.E., DUE TO UNCOOPERAT IVE ATTITUDE OF THE ASSESSEE. THE SAME CONDUCT CONTINUES BEFORE THE LD. CIT(A). NO DO UBT, THE FIRST NOTICE OF HEARING WAS ADDRESSED IN THE NAME OF HARMINDER SINGH, WHI LE THE ASSESSEES CORRECT NAME IS HARMANDEEP SINGH. HOWEVER, THE NAME IS ME NTIONED ALONG WITH THE ITA NO. 186/ASR/2018 (AY 2010-11) HARMANDEEP SINGH V. ITO 4 NAME OF THE ASSESSEES FATHER (AS SON OF SH. JASBIR SINGH), IDENTIFYING THE PERSON TO WHOM THE NOTICE IS BEING ISSUED. IT IS NOBODYS CAS E THAT ANOTHER APPEAL WAS FILED BY ONE, HARMINDER SINGH SON OF SH. JASBIR SINGH, BY THE OFFICE OF THE COUNSEL, M/S. D.V. PURI & CO., WHOSE OFFICE ADDRESS WAS GIVEN AS THE ADDRESS FOR COMMUNICATION. IT IS CLEARLY A CASE OF A TYPOGRAPHI CAL ERROR. WHY, THE IMPUGNED ORDER ITSELF, APPEALED AGAINST BY THE ASSESSEE, IS IN THE NAME OF HARMINDER SINGH, AND NOT THE ASSESSEE. THE NEXT THREE NOTICES ARE TO THE VILLAGE ADDRESS. THE REPORTS ARE CLEARLY CONTRADICTORY. IF THE ASSESSEE HAD INDE ED LEFT THE VILLAGE, THERE IS NO QUESTION OF HIS REFUSING THE FOLLOWING TWO NOTICES, I.E., 10.07.2017 AND 24.07.2017. IN FACT, THE ADDRESS MENTIONED IN FORM 36, I.E., TH E FORM FOR FILING THE APPEAL BEFORE THE TRIBUNAL, IS THE SAME VILLAGE ADDRESS, SO THAT CLEARLY THE ASSESSEE HAD NOT LEFT HIS VILLAGE. IT MAY BE THAT THE ASSESSEE WAS NOT AVAILA BLE AT THE RELEVANT TIME, AS, FOR EXAMPLE, BEING OUT OF VILLAGE AT THE RELEVANT TIME, AND WHICH WAS EITHER MISCONSTRUED BY, OR THE POSTMAN GIVEN TO UNDERSTAND , THAT THE ASSESSEE HAD LEFT THE VILLAGE. IN FACT, THIS ALSO RAISES DOUBTS WITH REGA RD TO THE NON-SERVICE OF THE IMPUGNED ORDER AND THE RESULTANT DELAY IN FILING TH E APPEAL BEFORE THE TRIBUNAL. THE SAME WOULD REQUIRE BEING VERIFIED FROM THE APPELLAT E RECORD, SINCE CALLED FOR. THE APPEAL, HOWEVER, BEING ALREADY ADMITTED, WE DO NOT WISH TO ENTER INTO THIS CONTROVERSY, AND THIS IS BEING STATED ONLY TO EMPHA SIZE THE ASSESSEES CONDUCT. IT CAN THEREFORE, UNDER THE CIRCUMSTANCES, BE SAID THA T THERE IS NO EXPLANATION FOR NON AVAILING THE OPPORTUNITIES AFFORDED BY THE FIRST AP PELLATE AUTHORITY. THAT, HOWEVER, WOULD ONLY MEAN THAT THE ASSESSEE-APPELLANT HAS NOT HING FURTHER TO SAY IN THE MATTER AND, EX CONSEQUENTI , THE APPEAL BE DECIDED ON THE BASIS OF THE MATERIA L ON RECORD AFTER HEARING THE OTHER SIDE, I.E., EX PARTE QUA THE ASSESSEE. IT DOES NOT ENTITLE THE APPELLATE AUTHORITY TO PASS AN ORDER OTHER THAN ON MERITS, BASED ON THE MATERIAL ON RECORD. ITA NO. 186/ASR/2018 (AY 2010-11) HARMANDEEP SINGH V. ITO 5 WE ARE CONSCIOUS THAT THE ASSESSMENT ORDER IS ALS O AN EX PARTE ORDER, SO PASSED IN THE ABSENCE OF THE ASSESSEE FURNISHING TH E INFORMATION CALLED FOR, SO THAT THE ENTIRE CONSIDERATION FOR THE PURCHASE OF LAND, I.E., RS.113.50 LACS, WAS CONSIDERED AS AN UNEXPLAINED INVESTMENT BY HIM AND DEEMED AS THE ASSESSEES INCOME U/S. 69/69A. THAT, RATHER, FURTHER REQUIRED THE LD. CIT(A) TO BE MORE CIRCUMSPECT, EXAMINING THE FACTS TO SEE IF INDEED A N ADDITION IN THE SUM MADE WAS CALLED FOR, OR THERE WAS SOME MERIT IN THE ASSESSEE S STAND, REPRODUCED AT PAGES 2-5 OF THE ASSESSMENT ORDER. IF ANY PARTY BEFORE HIM DO ES NOT RESPOND EVEN AFTER GRANT OF PROPER OPPORTUNITY, THE ASPECT OF EXTENSION OF P ROPER OPPORTUNITY (FOR PRESENTING ITS CASE) STANDS SATISFIED. AN APPELLATE AUTHORITY IS DUTY BOUND TO ADJUDICATE ON MERITS, WHICH SHOULD HAVE BEEN ALL THE MORE SO IN T HE PRESENT CASE IN VIEW OF THE ASSESSMENT BEING A BEST JUDGMENT ASSESSMENT, OF COU RSE AFTER HEARING THE PARTY BEFORE HIM. REFERENCE IN THIS CONTEXT BE MADE TO DE CISION IN CIT V. CHENNIAPPA MUDALIAR [1969] 74 ITR 41 (SC), WHICH STANDS FOLLOWED BY TH E HONBLE COURTS ACROSS THE COUNTRY, AS RECENTLY IN BHARAT PETROLEUM CORPORATION V. ITAT [2013] 359 ITR 371 (BOM). WE, ACCORDINGLY, ONLY CONSIDER IT PROPER TO, SETTI NG ASIDE THE IMPUGNED ORDER, RESTORE THE MATTER BACK TO THE FILE OF THE L D. CIT(A) FOR ADJUDICATION AFRESH ON MERITS, DISPOSING THE ASSESSEES APPEAL BEFORE H IM AND AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES . AS AFORE-NOTED, THE LD. COUNSEL WOULD INDICATE THAT THE DEMAND WOULD, IN SUCH A CAS E, SURVIVE. THAT IS A DIFFERENT MATTER, WHICH HAS TO BE ADDRESSED AS PER THE PROCES S KNOWN TO LAW. IT IS OPEN TO THE ASSESSEE TO APPROACH THE LD. CIT(A) FOR STAY OF THE DEMAND, AND WHERE SO, HE SHALL DECIDE THE SAME ON MERITS, INCLUDING IMPOSING SUCH CONDITIONS OR RESTRICTIONS AS HE MAY DEEM FIT AND PROPER IN THE FACTS AND CIRCUMSTAN CES OF THE CASE. ON THE BASIS OF THE MATERIAL ON RECORD, AS WELL AS THE ARGUMENTS MA DE BEFORE US, THERE IS NOTHING TO SET ASIDE THE ASSESSMENT AS MADE, WHICH A RESTORATI ON TO THE FILE OF THE AO WOULD ITA NO. 186/ASR/2018 (AY 2010-11) HARMANDEEP SINGH V. ITO 6 NECESSARILY IMPLY. FURTHER, THE SECOND APPREHENSION EXPRESSED BY THE LD. COUNSEL IS OF NO TIME FRAME IN LAW IN DISPOSING AN APPEAL BY T HE FIRST APPELLATE AUTHORITY. WE FIND NO BASIS FOR THAT APPREHENSION; RATHER, THE AS SESSEE HIMSELF, BY NOT RESPONDING TO THE SEVERAL OPPORTUNITIES AFFORDED TO HIM, RESPO NSIBLE FOR THE PRESENT STATE OF AFFAIRS. THE LD. CIT(A) IS, HOWEVER, DIRECTED TO DI SPOSE THE ASSESSEES WITHIN A REASONABLE TIME PERIOD, OF COURSE, WITHOUT IN ANY M ANNER COMPROMISING THE DUE PROCESS OF LAW OR THE MERITS OF THE ADJUDICATION. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 20, 20 18 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 20.08.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: HARMINDER SINGH (CORRECT NAM E IS HARMANDEEP SINGH) 13-VILLAGE BHAINI GILLAN, AMRITSAR-143001 PUNJAB (2) THE RESPONDENT: INCOME TAX OFFICER WARD 5(2 )-AMRITSAR (3) THE CIT(APPEALS)-2, AMRITSAR (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER