SH. GURDIP SINGH, JALANDHAR V. INCOME TAX OFFICER , PHAGWARA

ITA 196/ASR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5357 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHARAN DAS DR
• Assessee Lawyers: SUSHIL CHOPRA
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Tangible material; Set aside; Audi alteram partem
• Section: 142(1); 143(2); 13; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, AMRITSAR (VIRTUAL COURT) BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ./ ITA NO. 196 /ASR/2019 / ASSESSMENT YEAR : 2010-11 GURDIP SINGH, SON OF BHAJAN SINGH VILL. TAGGAR P.O. PASLA, TEH. PHILLAUR, DIST: JALANDHAR THE ITO WARD-2, PAHGWARA ./ TAN NO. BTLPS3338E / APPELLANT / RESPONDENT ! / ASSESSEE BY : SHRI SUSHIL CHOPRA, ADVOCATE ! / REVENUE BY : SHRI CHARAN DAS, DR ! &/ DATE OF HEARING : 22/09/2020 ! &/ DATE OF PRONOUNCEMENT : 22/09/2020 / // / ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 10/12/2018 OF LD. CIT(A)-2, JALANDHAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. COMMISSIONER OF INCOME TAX(APPEALS) IS WHOLLY UNJUSTIFIED AND ERRED IN:- 1. DISMISSING THE APPEAL WHEN ADMITTEDLY THE PROCEEDIN GS WERE ATTENDED TO, FROM TIME TO TIME, AND ADJOURNED ON REQUEST OR OTHERWISE , AND HE HAS SUFFICIENT AND REASONABLE CAUSE FOR NOT ATTENDING BEING AT HIGH COURT IN A CR IMINAL CASE IN COMPULSORY ATTENDANCE ON 26-11-2018. 2. DISMISSING THE APPEAL AS THE ABSENCE OF THE ASSESSE E BEFORE HIM WAS BEYOND HIS CONTROL. 2 3. DISMISSING THE APPEAL BY UNLAWFULLY OPINING THAT TH E ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL AGAINST THE EX PARTE ORDER PASS ED BY THE AO U/S 144 OVERLOOKING THE VARIOUS GROUNDS OF APPEAL SO RAISED. 4. UNLAWFULLY DISPOSING OF THE APPEAL EXPARTE WITHOUT GOING TO THE MERITS OF THE CASE AS PER GROUNDS OF APPEAL. 5. DISMISSAL OF THE APPEAL WITHOUT GOING INTO THE MERI TS IS A DENIAL OF PRINCIPLES OF NATURAL JUSTICE. 6. IN CONFIRMING THE UNLAWFUL ORDER OF THE AO, PASSED WITHOUT COMPLYING WITH THE MANDATORY PROVISIONS OF SECTION 143(2) OF THE INCOM E TAX ACT 1961, THEREBY INVALIDATING THE ORDER UNDER REFERENCE. 7. IN CONFIRMING THE ORDER U/S 144 OF THE INCOME TAX A CT,1961 BY THE AO AT THE INCOME OF RS. 1,98,49,700/-, MADE ARBITRARILY, BASE LESSLY, ON A PURELY GUESS WORK BASED ON CONJECTURES AN SURMISES WITHOUT TAKING COGNIZANCE O F THE RETURN OF INCOME FILED ON 13-11- 2017 VIDE RECEIPT NO. 489, IGNORING THE REQUEST FOR HEARING DATED 17-11-2017. 8. IN CONFIRMING THE UNLAWFUL ACTION OF THE ITO IN FOR MING BELIEF FOR ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 ON THE CLEAR BASIS OF CASH DEPOSITS IN THE BANK ACCOUNTS, WHICH IS NOT A TANGIBLE MATERIAL, THEREBY UPHOLDING THE ASSESSMENT BASED UPON IT ON THE AMOUNT OF RS.1,98,49,700/-. 9. IN CONFIRMING THE ORDER OF THE AO ASSESSING AT R S. 1,98,49,700/-, WHEN THE AO IS WHOLLY UNJUSTIFIED IN INITIATING THE PROCEEDINGS U/ S 147/148 OF THE INCOME TAX ACT,1961 BY PROCEEDING ON FALLACIOUS PRESUMPTIONS THAT BANK DEP OSITS CONSTITUTED UNDISCLOSED INCOME OVERLOOKING THE FACT THAT DEPOSITS NEED NOT NECESSA RILY BE THE INCOME OF THE ASSESSEE. 10. IN CONFIRMING THE ORDER OF THE AO ASSESSING THE CASH BANK DEPOSITS RS. 1,98,49,700/- DENYING THE BENEFIT OF TELESCOPING OF THE CASH DEPOSITED AGAINST CASH WITHDRAWN, TO WHICH THE ASSESSEE IS ENTITLED. 10. THAT THE APPELLANT SEEKS LEAVE TO ADD OR AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS FINALLY HEARD AND DISPOSED OFF. 11. THAT THE APPEAL IS FILED WITH IN TIME. 3. VIDE GROUND NO. 1 TO 5 THE GRIEVANCE OF THE ASSESS EE RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE B ASIS OF AIR INFORMATION THAT THE ASSESSEE HAD DEPOSITED A SUM OF RS. 1,98,49,700/ - IN CASH IN HIS SAVING BANK ACCOUNT NO. 10951600000147 WITH HDFC BANK LIMITED AND A /C NOS. 007901505916 & 007901501107 WITH ICICI BANK, INITIATED THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT ) AND ISSUED NOTICES UNDER SECTION 148 & 142(1) OF THE ACT. THE A.O. MENTIONED THAT IN RESPO NSE TO THE SAID NOTICES, THE ASSESSEE ATTENDED AND SOUGHT ADJOURNMENT FROM TIME TO TI ME. HOWEVER, THE AO FRAMED THE ASSESSMENT EXPARTE AND MADE THE ADDITION OF R S. 1,98,49,700/-. 3 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL EXPARTE BY OBSERVING THAT WHENEVER THE CASE WA S FIXED FOR HEARING THE ASSESSEE EITHER NOT ATTENDED OR SOUGHT ADJOURNMENT. HE H AS MENTIONED THE DATES FOR HEARING IN PARA 3 OF THE IMPUGNED ORDER, FOR THE COST OF REPETITION THE SAME ARE NOT REPRODUCED HEREIN. 6. THE LD. CIT(A) SUSTAINED THE ADDITION MADE BY THE A. O. 7. NOW THE ASSESSEE IS IN APPEAL. 8. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) ISSUED THE NOTICE OF HEARING ON 16/11/2018 WHICH THE ASSESSEE COMPLIED AND ATTE NDED, AND SOUGHT ADJOURNMENT FOR 26/11/2018 FOR THE REASONS THAT HIS COUN SEL WAS OUT OF STATION. HOWEVER ON THE SAID DATE I.E; 26/11/2018, THE ASSESSEE HAD TO APPEAR BEFORE HE HON'BLE HIGH COURT IN THE CRIMINAL PROCEEDINGS AND COULD NOT ATTEND THE HEARING BEFORE THE LD. CIT(A) WHO PASSED EXPARTE ORDER ON 27/11/2018 BY MENTI ONING THAT NOBODY ATTENDED. HE SUBMITTED THAT THE OPPORTUNITY OF BEING HEARD WAS NO T PROVIDED BY THE LD. CIT(A). HE REQUESTED TO RESTORE THE MATTER BACK TO THE FILE O F THE LD. CIT(A). 9. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR SUPPORTED T HE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSIONS WHICH REA D AS UNDER: 1. ASSESEE FAILED TO EXPLAIN THE SOURCE OF THE DEPO SITS DESPITE 10 OPPORTUNITIES (WITH SHOW BECAUSE NOTICE DATED, 18-9-2017 FOR 28-9-2017) AS P ER THE DETAILED ASSESSMENT ORDER. ASSESSING OFFICER VIDE PARA 9 OF THE ORDER FOUND TH AT CONCEPT OF NATURAL JUSTICE DOES NOT ENCOMPASS ENDLESS OPPORTUNITIES AND FOUND STRONGLY ESTABLISHED THAT ASSESSEE HAS NO EXPLANATION FOR THE SOURCE OF DEPOSITS . 2. THE ASSESSEE FAILED TO MAKE ANY EXPLANATION / EV IDENCE /SUBMISSIONS, DESPITE 19 OPPORTUNITIES (WITH 13 ADJOURNMENTS SOUGHT) EVEN BE FORE THE CIT(A) AND C1T(A) DECIDED THE CASE ON MERITS AS PER PARA 4.2 OF HIS ORDER HOL DING THAT ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSITS EVEN DURING THE APPEAL PROCEEDIN GS BEFORE HIM. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED. SD/- (CHARAN DAS) JOINT COMMISSIONER OF INCOME TAX (DR)(ITAT) AMRITSAR 4 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE LD. CIT(A) HIMSELF MENTIONED THAT WHEN THE CASE WAS FIXED FOR HEARI NG ON 16/11/2018 THE ASSESSEE SOUGHT ADJOURNMENT FOR 26/11/2018. IT IS ALSO NOTICED T HAT THE LD. CIT(A) DISMISSED THE APPEAL ON 27/11/2018 BY MENTIONING THAT NOBODY ATTENDED , IN RESPONSE TO THE ISSUE OF NOTICE OF HEARING ON 27/11/2018. HOWEVER NOTHING IS BROU GHT ON RECORD TO SUBSTANTIATE THAT ANY NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE FOR HEARING ON 27/11/2018. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PARTEM . 11. WE THEREFORE BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22/09/2020 SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 22/09/2020 !,-, / COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, AMRITSAR 6. GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR