Shri Suresh Kumar, Kaithal V. ITO Ward-2, Kaithal

ITA 205/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2193 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Condonation of delay; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 205/CHD/2020 ASSESSMENT YEAR : 2010-11 SHRI SURESH KUMAR WARD NO. 3, VILLAGE CHEEKA TEHSIL GUHLA, KAITHAL-136034 HARYANA THE ITO WARD-2 KAITHAL-136027 HARYANA PAN NO: BUYPK7076B APPELLANT RESPONDENT !' ASSESSEE BY : SHRI TEJMOHAN SINGH, ADVOCATE #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 17/02/2021 '()*! & DATE OF PRONOUNCEMENT :17/02/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER D T. 20/11/2018 OF LD. CIT(A), KARNAL. 2. THE REGISTRY HAS POINTED OUT THAT THERE WAS A DELAY O F 403 DAYS IN THIS APPEAL. THE ASSESSEE MOVED AN APPLICATION FOR CONDONATION OF DELA Y STATING THEREIN AS UNDER: SUBJECT : CONDONATION OF DELAY IN SUBMISSION OF APPEAL IN S URESH KUMAR VERSUS LTO (WARD- 2), KAITHAL FILED ON 26.02.2020 DEAR SIR, ON 20.11.2018 THE ORDER OF COMMISSIONER (APPEALS), KARNAL, WAS PASSED IN MY CASE FOR ASSESSMENT YEAR 2010-2011 REGARDING THE ABOVE ORDER I REQUESTED ADVOCATE ANIL MEHTA TO PREFER AN APPEAL TO THE HON'BLE APPELLATE TRIBUNAL. UNFORTUNATELY NO APPEAL WAS FILED IN MY CASE AND IT CAME TO MY NOTICE NO SOONER. AS SOON IT CAME TO MY ATTENTION I FILED A CASE AGAINST THE ABOVE SAID ADVOCATE IN BAR COUNCIL FOR 2 HIS ATTEMPT TO DECEIVE THE CLIENT AND UNLAWFUL PRAC TICE. THE COPY OF COMPLAINT AND OTHER NECESSARY DOCUMENTS ARE ATTACHED FOR YOUR REFERENCE . HENCE I WOULD REQUEST TO CONDONE THE DELAY OF 403 D AYS IN SUBMISSION OF THE APPEAL. MY AFFIDAVIT DETAILING THE AFORESAID FACTS AND THES E MAY KINDLY BE PLACED BEFORE THE HON'BLE APPELLATE TRIBUNAL FOR CONDONATION OF THE S HORT DELAY IN SUBMISSION OF THE APPEAL. 3. IN SUPPORT OF THE ABOVE APPLICATION AN AFFIDAVIT HAS BEEN FURNISHED WHICH READ AS UNDER: I, SURESH KUMAR SON OF SH. JAGDISH CHAND RESIDENT O F WARD NO 3, CHEEKA TEHSIL GUHLA, DISTRICT KAITHAL, HARYANA (INDIA) HEREBY SOLEMNLY A FFIRM AND DECLARE AS UNDER: 1. THAT I AM ASSESSED TO INCOME-TAX BY THE ASSESSIN G OFFICER, (WARD-2), KAITHAL ON FILE BEARING PERMANENT ACCOUNT NUMBER BUYPK7076B. 2. THAT I PREFERRED AN APPEAL TO THE COMMISSIONER ( APPEALS), AGAINST THE ASSESSING OFFICER'S ORDER OF ASSESSMENT U/S 143(3)/147 OF INCOME TAX AC T 1961 FOR THE ASSESSMENT YEAR 2010- 2011 3. THAT I RECEIVED THE ORDER OF THE COMMISSIONER (A PPEALS) -KARNAL ON 20.11.2018. REGARDING THE ABOVE ORDER I REQUESTED ADVOCATE ANIL MEHTA TO PREFER AN APPEAL TO THE HON'BLE APPELLATE TRIBUNAL. UNFORTUNATELY NO APPEAL WAS FILED IN MY CASE AND IT CAME TO MY NOTICE NO SOONER. AS SOON IT CAME TO MY ATTENTION I FILED A CASE AGAINST THE ABOVE SAID ADVOCATE IN BAR COUNCIL FOR HIS ATTEMPT TO DECEIVE THE CLIENT. THE COPY OF COMP LAINT AND OTHER NECESSARY DOCUMENTS ARE ATTACHED WITH LETTER FOR REQUEST FOR CONDO NATI ON OF DELAY. I FURTHER DECLARE THAT THE ABOVE STATEMENT IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. THE ASSESSEE ALSO FURNISHED THE APPLICATION DATED 18/02/ 2020 MOVED TO THE BAR COUNCIL, AND THE LETTER DT. 11/06/2020 OF THE BAR COUNC IL CALLING THE COMMENT OF THE ADVOCATE, COPY OF WHICH IS PLACED ON RECORD. 4. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE DELAY OCCURRED DUE TO MISTAKE OF THE ADVOCATE AND THE ASSESSEE HAD BROUGHT THIS MATTER TO THE KNOWLEDGE OF THE BAR COUNCIL ALSO BY FIL ING THE COMPLAINT AGAINST THE THEN COUNSEL FOR THE ASSESSEE. IT WAS CONTENDED THAT THE DELAY IN FILING THE APPEAL WAS BEYOND THE CONTROL OF THE ASSESSEE AND THERE WAS NO MALAF IDE INTENTION, THEREFORE THE APPEAL MAY BE ADMITTED. IT WAS FURTHER SUBMITTED THA T THE LD. CIT(A) PASSED THE IMPUGNED ORDER EXPARTE WITHOUT DISCUSSING THE ISSUE ON M ERIT AND WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. 3 4.1 LD. COUNSEL FOR THE ASSESSEE ALSO FURNISHED AN APPL ICATION FOR ADMISSION OF THE ADDITIONAL EVIDENCES. THE SAID APPLICATION READ AS UNDER : APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE FO R ADJUDICATION. RESPECTFULLY SHOWETH AS UNDER: THE ABOVEMENTIONED APPEAL IS FIXED FOR HEARING ON T HE 17 OF FEBRUARY,2021. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS MADE AN ADDITION OF RS. 1,39,45,900/- ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT. TH E ASSESSEE HAD ALL ALONG BEEN STATING THAT HE HAD ENTERED INTO AGREEMENT TO SELL IN RESPE CT OF AGRICULTURAL LAND WITH VARIOUS PERSONS. THE ASSESSING OFFICER REJECTED THE EXPLANA TION OF THE ASSESSEE FOR WANT OF COMPLETE EVIDENCE. THE APPEAL BEFORE THE COMMISSION ER WAS DECIDED EX-PARTE. THE ASSESSEE HAS SINCE COLLECTED THE EVIDENCE IN THE SH APE OF AFFIDAVITS, LAND HOLDINGS OF THE PURCHASERS, ETC. THE EVIDENCE COULD NOT BE COLLECTE D EARLIER SINCE IT PERTAINED TO VERY OLD PERIOD. AS SUCH IT IS, THEREFORE, RESPECTFULLY PRAYED THAT THE ADDITIONAL EVIDENCE MAY PLEASE BE ADMITTED AND ADJUDICATED UPON WHICH GOES TO THE ROO T OF THE MATTER. 4.2 THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE A SSESSEE COULD NOT PROCURE THE DOCUMENTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS WH ICH ARE FURNISHED NOW AS AN ADDITIONAL EVIDENCE, THEREFORE, THESE MAY BE ADMITTED AS THE DOCUMENTS GO TO THE ROOT OF THE MATTER. IT WAS REQUESTED THAT THE ISSUE MA Y BE SET ASIDE TO THE A.O. 4.3 IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPOR TED THE ORDER PASSED BY THE A.O. AND ALSO OPPOSED THE CONDONATION OF THE DELAY IN FILING THE APPEAL. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT THE DELAY IN FILING THE APPEAL OCCURRED DUE TO THE MISTAKE OF THE ADVOCATE AND THE ASSESSEE HAD TAKEN APPROPRIATE STEPS, EVEN A COMPLAINT HAS BEEN FILED BEFO RE THE BAR COUNCIL TO TAKE ACTION AGAINST THE THEN COUNSEL FOR THE ASSESSEE WHO IS RES PONSIBLE FOR THE DELAY IN FILING THE APPEAL. WE THEREFORE CONSIDERING THE PECULIAR FACTS OF THIS CASE AND KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE CONDONE THE DELAY AND THE APPEAL IS ADMITTED. 5.1 IN THE PRESENT CASE, THE ASSESSEE HAS FURNISHED THE ADDITIONAL EVIDENCE WHICH COULD NOT BE PROCURED AT THE TIME OF ASSESSMENT PROCEE DINGS THESE DOCUMENTS IN THE FORM OF AFFIDAVITS FOR RECEIVING THE ADVANCE AGAINST SALE OF LAND AND COPY OF THE JAMABANDI GO TO THE ROOT OF THE MATTER AND ARE NECESS ARY TO RESOLVE THE PRESENT 4 CONTROVERSY. HOWEVER THESE DOCUMENTS WERE NOT AVAILABLE TO THE A.O. FOR HIS CONSIDERATION AS THE ASSESSEE COULD NOT PROCURE THE SAM E DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE ADMIT THESE ADDITIONAL EVID ENCES SINCE THESE GO TO THE ROOT OF THE MATTER. HOWEVER, THESE DOCUMENTS WERE NOT A VAILABLE TO THE A.O. IN THE INSTANT CASE, THE LD. CIT(A) PASSED THE IMPUGNED ORDER EX-PARTE AND THE ADDITIONAL EVIDENCES NOW FURNISHED BY THE ASSESSEE WERE NOT AVAILA BLE FOR HIS CONSIDERATION, WE THEREFORE BY KEEPING IN VIEW THE PECULIAR FACTS OF THI S CASE DEEM IT APPROPRIATE TO SET ASIDE THIS MATTER BACK TO THE FILE OF THE A.O. IN ACCOR DANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THESE NEW ADDITIONAL EVIDENCES NOW FURNISHED BY THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 17/02/2021) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 17/02/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE