Shri Mahabir, New Delhi V. ITO, Gurgaon

ITA 2208/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4130 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 28-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Opportunity of being heard; Additional evidence
• Section: 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2208/DEL/2016 (ASSESSMENT YEAR-2011-12) MAHABIR, 301, SAI CHAMBERS, 783/16, D.B.GUPTA ROAD, KAROL BAGH, NEW DELHI-110005. PAN-ATMPM5927B ( APPELLANT) VS ITO, WARD-11(21), 6 TH FLOOR, HSIIDC BUILDING, VANIJYA NIKUNJ, UDYOG VIHAR, PHASE-V, GURGAON. (RESPONDENT) ASSESSEE BY SH.SANJEEV KUMAR, ADV REVENUE BY NONE DATE OF HEARING 28 .09.2016 DATE OF PRONOUNCEMENT 17 .11.2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 19.02.2016 OF CIT(A)-2, GURGAON PERTAIN ING TO 2011 - 12 ASSESSMENT YEAR. HOWEVER, AT THE TIME OF HEARING AS ON 26.09.2016 AN D 27.09.2016, NO ONE WAS PRESENT ON BEHALF OF THE REVENUE. NO PETITION SEEKING TIME WAS ALSO PLACED BEFORE THE BENCH. ACCORDINGLY, ON CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD.AR, QUA THE GROUNDS RAISED IT WAS CONSIDERED APPROPRIAT E TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA REVENUE RESPONDENT ON MERITS. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE RETURNED AN INCOME OF RS.1,53,470/- ON 08.03.2012. THE SAID RETURN WAS SE LECTED FOR SCRUTINY UNDER CASS AFTER ISSUANCE OF NOTICE UNDER SECTION 143(2) AND QUESTIO NNAIRE ETC UNDER SECTION 142(1). THE ASSESSEE WAS REPRESENTED BY COUNSEL, SH.M.C CHATURV EDI, ADVOCATE. HOWEVER, AFTER FILING HIS POWER OF ATTORNEY, HE REMAINED ABSENT ON THE DA TE OF HEARING. SINCE NO APPEARANCE ON BEHALF THE ASSESSEE WAS PUT BY ANYONE ELSE ALSO, THE ASSESSING OFFICER SHOW CAUSED THE ASSESSEE WHY ASSESSMENT SHOULD NOT BE COMPLETED EX-PARTE UNDER SECTION 144 BY MAKING AN ADDITION OF RS.41,02,300/-. IN THE ABSENC E OF ANY RESPONSE, ADDITION OF THE SAID AMOUNT WAS MADE IN VIEW OF THE FACT THAT AS PER THE SAVINGS BANK ACCOUNT WITH KOTAK MOHINDRA BANK LTD. A/C NO.02850150002683, THE ASSES SEE WAS FOUND TO HAVE MADE CASH I.T .A .NO.-2208/DEL/2016 PAGE 2 OF 8 DEPOSITS TOTALING RS.41,02,300/- ON VARIOUS DATES. THE RELEVANT DETAILS ARE REPRODUCED HEREUNDER:- DATE AMOUNT 29.04.2010 2,500 17.05.2010 15,000 05.07.2010 35,000 14.07.2010 30,000 14.08.2010 55,000 15.09.2010 55,000 29.09.2010 15,000 16.10.2010 50,000 15.11.2010 50,000 11.01.2011 8,00,000 15.01.2011 9,90,000 05.02.2011 15,00,000 14.02.2011 52,400 15.02.2011 4,00,000 14.03.2011 52,400 TOTAL 41,02,300 2.1. THE ASSESSING OFFICER FURTHER FOUND THAT IN TH E KOTAK MAHINDRA BANK LIMITED THE ASSESSEE IN ITS SAVINGS ACCOUNT HAD CREDITED OF RS. 19,178/-. AN ADDITION OF THE SAID AMOUNT WAS ALSO MADE. 3. AGGRIEVED BY THIS, THE ASSESSEE CAME IN APPEAL B EFORE THE FIRST APPELLATE AUTHORITY. A PERUSAL OF THE RECORD SHOWS AS PER PAR A 4.3 OF THE SAID ORDER, THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EV IDENCE UNDER RULE 46A CLAIMING THAT THE CASH DEPOSITS WERE FROM THE FOLLOWING SOURCES:- I. BUSINESS RECEIPTS; II. SALE PROCEEDS OF ANCESTRAL AGRICULTURAL LAND. III. SALE PROCEEDS OF PLOT IN THE NAME OF HIS WIFE. IV. SALE PROCEEDS OF TRUCK. 3.1. THE COPY OF THE ADDITIONAL EVIDENCES WERE FORW ARDED BY THE CIT(A) TO THE AO DIRECTING HIM TO CONDUCT NECESSARY ENQUIRIES. AS PE R THE REMAND REPORT EXTRACTED IN PARA 4.5 OF THE CIT(A)'S ORDER, THE ASSESSING OFFICER RE PORTED THAT NOTICE DATED 09.12.2015 WAS ISSUED TO THE ASSESSEE ASKING HIM TO ATTEND THE OFF ICE ON 16.12.2015 TO FURNISH DOCUMENTS IN SUPPORT OF HIS CONTENTION, RAISED IN THE SUBMISS IONS DATED 30.10.2015 BEFORE THE CIT(A). HOWEVER, ON THE SAID DATE, NO ONE WAS PRESENT ON BE HALF OF THE ASSESSEE. I.T .A .NO.-2208/DEL/2016 PAGE 3 OF 8 3.2. THE SUBMISSIONS ADVANCED ON BEHALF THE ASSESSE E EXTRACTED BY THE CIT(A) ARE REPRODUCED HEREUNDER:- A. 'THAT SH. MAHABIR IS AN ILLITERATE PERSON, BEL ONGING TO AN AGRICULTURIST FAMILY, WHO LEARNT DRIVING AND STARTED A SMALL TRAN SPORT BUSINESS, SUPPLYING BUILDING MATERIALS. THE ASSESSEE DOES NOT KNOW ANYTHING ABOUT INCOME TAX WHICH HAS RESULTED IN DEFAULTS. B. THAT THE ASSESSEE HAS NOT FILED ANY INCOME TAX RETURN FOR THE A. Y. 2011- 12 NOR HE HAS CARRIED ANY CIVIL CONTRACTOR BUSINESS IN THE NAME AND STYLE OF M/S SHIVAM ENTERPRISES DURING THE YEAR. C. THAT ASSESSEE IS THE ONLY SON OF HIS FATHER AND LIVES IN A JOINT FAMILY , WHICH IS ENGAGED IN AGRICULTURE. D. THAT THERE IS SALE OF ANCESTRAL AGRICULTURAL LAND AT VILLAGE P URUSHATTAM PUR , DISTT.- REWARI, HARYANA, TO SH. MOHIT GUJRAL, MD, R/O 20, GAURI APARTMENTS, 3-4, SOUTH END LANE, NEW DELHI-110011 & OTHERS, FOR WHICH TWO CHEQUES AMOUNTING TO RS.1,12,50,000/- AND RS.31,97, 656/- WERE RECEIVED AND DEPOSITED IN THE BANK ACCOUNT OF SH. SHAMBHU, FATHE R OF THE ASSESSEE, ON 05.09.2007 AND 23.08.2006 RESPECTIVELY. THERE WERE SEVERAL CASH WITHDRAWALS, OUT OF WHICH CERTAIN CASH, KEPT AT HOM E ARE DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE YEAR UNDER CONSI DERATION. A COPY OF THE BANK ACCOUNT REFLECTING CASH WITHDRAWALS IS ENCLOSE D FOR KIND PERUSAL. E. THERE IS A SALE OF PLOT IN THE NAME OF HIS WIFE SUM ITRA DEVI AT VILLAGE FAJALWAS, THE- MANESAR, DISTT. GURGAON, AMOUNTING T O RS, 8,60,000/-ON 18.01.2011, WHOSE SALE PROCEEDS ARE DEPOSITED IN TH E ACCOUNT OF THE ASSESSEE. A COPY OF THE SALE DEED DATED 18.01.2011 IS ENCLOSED FOR KIND PERUSAL. F. THERE IS A SALE OF TRUCK, WHOSE SALE PROCEEDS AT RS.10,50,000/- ON 15.01.2011, ARE DEPOSITED IN THE ACCOUNT OF THE ASS ESSEE, G. THAT THERE ARE BUSINESS RECEIPTS AS WELL AGRIC ULTURE RECEIPTS, DEPOSITED IN THE ACCOUNT OF THE ASSESSEE. H. THAT INCOME OF THE ASSESSEE HAS BEEN BELOW TAX ABLE LIMIT AND HIS BEING VILLAGE FOLK AND IGNORANCE HAVE RESULTED IN F URNISHING NO DETAILS DURING ASSESSMENT PROCEEDINGS. ' (EMPHASIS PROVIDED) 3.3. THE SUBMISSIONS WERE REJECTED IN VIEW OF THE F OLLOWING REASONING:- A. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE FILED A REPLY- DATED 3.3.2014 AND ALSO FILED POWER OF ATTORNEY DAT ED 8.10.2012. ON, BOTH THE DOCUMENTS THE ASSESSEE HAS SIGNED IN ENGLISH LANGUA GE . HENCE, IT APPEARS INCORRECT THAT THE ASSESSEE IS AN ILLITERAT E PERSON. IN THE REPLY DATED 3.3.2014 VIDE POINT NO. 2 THE ASSESSEE STATED THAT 'I AM CIVIL CONTRACTOR AND GROSS RECEIPTS IN THE YEAR WAS RS.22,00,000/-' . THUS, THE PLEA OF THE ASSESSEE THAT 'HE IS RUNNING A SMALL TRANSPORT BUSI NESS, SUPPLYING BUILDING MATERIALS ETC.' IS AN AFTER-THOUGH. HENCE, THE PLEA TAKEN BY THE ASSESSEE IS LIABLE TO BE REJECTED. B. A STATED ABOVE IN REPLY TO POINT (A), IT IS A MA TTER OF RECORD/FACT THAT ASSESSEE WAS A CIVIL CONTRACTOR. HENCE, THE PLEA TA KEN BY THE ASSESSEE IS LIABLE TO BE REJECTED. C. IN THE SAME REPLY DATED 3.3.2014 VIDE POINT NO. 3, THE ASSESSEE STATED AS UNDER:- 'REGARDING CASH OF RS.41,02,300/- DEPOSITED IN KOTA K MAHINDRA BANK, THIS AMOUNT WAS DEPOSITED OUT OF GROSS RECEIPTS FRO M CIVIL CONTRACTOR WORK AND HE HAS SOLD A PROPERTY FOR RS.42,50,000/-. THIS PROPERTY WAS PURCHASED BY ME IN FY 1995-96 FOR RS.16,90,000/ -. I AM ENCLOSING HEREWITH COPY OF PURCHASE AND SALE OF PRO PERTY. ' HENCE, THE PLEA TAKEN BY THE ASSESSEE IN POINT NO. (D) OF THE SUBMISSIONS THAT THERE AS A SALE ANCESTRAL AT REWARI AND CASH WAS DE POSITED OUT OF THIS I.T .A .NO.-2208/DEL/2016 PAGE 4 OF 8 AMOUNT, IS AN AFTER-THROUGH AND CONCOCTED STORY. TH EREFORE, THIS PLEASE ALSO IS LIABLE TO BE REJECTED. D. AS STATED ABOVE IN REPLY TO POINT (C), THE PLEA TAKEN BY THE ASSESSEE THAT THERE WAS SALE OF PLOT IN THE NAME OF WIFE SUMITRA DEVI AT VILL. FAJALWAS AND CASH DEPOSITED OUT OF THIS AMOUNT IS ALSO AN AFTER- THOUGHT. HENCE, THE SAME IS ALSO LIABLE TO BE REJECTED. E. IN RESPECT OF SALE OF TRUCK AT RS.10,50,000/-. AS STATED ABOVE IN REPLY TO POINT (C) AND (D), THE PLEA TAKEN BY THE ASSESSEE I S AN AFTER-THOUGHT. HENCE, THE SAME IS LIABLE TO BE REJECTED. (EMPHASIS PROVIDED) 3.4. THE ASSESSEE CONFRONTED WITH THE REMAND REPORT OF T HE ASSESSING OFFICER AS PER RECORD SUBMITTED THAT IT IS A MATTER OF FACT THAT THERE WAS SALE OF ANCE STRAL AGRICULTURE LAND AT VILLAGE PURUSHATTAM PUR DISTT. REWARI (HR), FOR WHICH TWO CHEQUES AMOUNTING TO RS.1,12,50,000/- AND RS.31,97,656/- WERE RECEIVED A ND DEPOSITED IN THE BANK ACCOUNT OF SH.SHAMBHU FATHER OF THE ASSESSEE, ON 05.09.2007 AN D 23.08.2006 RESPECTIVELY. 3.5. IT WAS ALSO SUBMITTED THAT A PLOT IN THE NAME OF ASSESSEES WIFE, SMT. SUMITRA DEVI AT VG. FAJALWAS THE MANESAR DISTT. GURGAON WAS SOLD ON 18.01.2011 FOR RS.8,60,000/-. THESE SALE PROCEEDS WERE IT WAS STATED DEPOSITED IN THE ACCOUNT OF THE ASSESSEE. THE SAID CLAIM WAS STATED TO BE SUPPORTED BY SALE DEED DATED 18.01.2011. 3.6. APART FROM THAT DEPOSIT OF RS.10,50,000/- WAS EXPLAINED AS THE SALE PROCEEDS OF TRUCK DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE ON 15.01.2011. 3.7. CONSIDERING THE EXPLANATION, THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE AS PER HIS REPLY DATED 03.03.2014 CLAIMED THAT THE CASH DE POSITS WERE MADE OUT OF GROSS RECEIPTS FROM CIVIL CONTRACTOR WORK AND SALE OF PROPERTY FOR RS.42,50,000/- DURING THE YEAR WHICH WAS PURCHASED BY HIM IN FINANCIAL YEAR 1995-96 FOR AN AMOUNT OF RS.16,90,000/-. CONSIDERING THE OBJECTIONS OF THE ASSESSEE DENYING THE WRITTEN SUBMISSIONS DATED 03.03.2014 BEFORE THE ASSESSING OFFICER, THE CIT(A) REPRODUCED THE SCANNED COPY OF THE SAID REPLY AT PAGE 8 OF THE IMPUGNED ORDER AND CONS IDERING THE SAME ALONGWITH A POWER OF ATTORNEY WITH REGARD TO SALE OF IMMOVABLE PROPERTY DATED 05.02.2011 WHICH HAD BEEN FILED BY THE ASSESSEE AND IS FORMING PART OF THE RECORD W HEREIN THE ASSESSEE AGREED TO SELL HIS PROPERTY TO SH. RITESH SON OF SH. MANGAL SINGH FOR AN AMOUNT OF RS.42,50,000/- OUT OF WHICH THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.24, 00,000/- ON 15.01.2011 AND THE I.T .A .NO.-2208/DEL/2016 PAGE 5 OF 8 REST OF THE MONEY I.E RS.18,50,000/- ON 05.02.2011 AND CONSIDERING ANOTHER POWER OF ATTORNEY DATED 04.05.1995 BETWEEN SH. SITARAM, SON OF SH. GHANSHYAM DAS AND THE ASSESSEE THE CIT(A) CONCLUDED THAT THE REPLY DATED 03.03.2014 WAS FILED BY THE ASSESSEE AND DULY SIGNED BY HIM. THE OBSERVATIONS OF THE AS SESSING OFFICER THAT NONE APPEARED ON 03.03.2014 NOR ANY WRITTEN REPLY WAS FILED, IT WAS CONSIDERED TO BE APPARENTLY AN INCORRECT OBSERVATION BY THE AO DUE TO OVERSIGHT. ACCORDINGL Y, THE EXPLANATION OF THE ASSESSEE WAS CONSIDERED TO BE NOT SUPPORTED BY ANY EVIDENCES. Q UA THE CLAIM OF SALE OF PLOT BELONGING TO THE ASSESSEE'S WIFE OR THE SALE PROCEEDS OF A TR UCK BELONGING TO HIM WERE HELD TO BE NOT SATISFACTORILY EXPLAINED. AGGRIEVED BY THIS, THE A SSESSEE IS IN APPEAL BEFORE THE ITAT. 4. THE LD. AR INVITING ATTENTION TO THE RECORD, SUB MITTED THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE WAS NOT REPRESENTED AND IF AT ALL ANY POWER OF ATTORNEY HAS BEEN FILED, IT HAS BEEN FILED BY SOMEONE NOT ENTRUSTED B Y HIM. THE CONCLUSIONS OF THE CIT(A) THAT THE ASSESSING OFFICER MADE AN INCORRECT OBSERV ATION IN REGARD TO THE APPEARANCE ON 03.03.2014 WHEREIN IT IS HELD THAT NO ONE HAS APPE ARED AS AN OBSERVATION BY OVERSIGHT IT WAS ASSAILED IS BASED ON NO MATERIAL AND CONTRARY T O RECORD. ADDRESSING THE COPY OF THE SCANNED REPLY FORMING PART OF THE IMPUGNED ORDER RE PRODUCED AT PAGE 8, IT WAS SUBMITTED THAT IT WAS NOT HIS SIGNATURE ACCORDINGLY IT WAS HI S PRAYER THAT THE ADDITIONS MADE APPLYING AN INCORRECT SECTION MAY BE DELETED AS IT IS SECTIO N 69 WHICH SHOULD HAVE BEEN INVOKED AND NOT SECTION 68. MOREOVER, THE CLAIM OF THE ASS ESSEE THAT THE DEPOSITS WERE FROM THE SALE PROCEEDS OF THE TRUCK AND FROM THE SALE OF THE PLOT OWNED BY HIS WIFE ETC. HAVE BEEN DISMISSED WITHOUT BRINGING OUT ANY REASON AS TO WHA T WAS THE DEFICIENCY IN THE EXPLANATION AND THE EVIDENCE OF THE ASSESSEE. ACCORDINGLY IT W AS HIS ALTERNATIVE PRAYER THAT THE MATTER MAY BE REMANDED AS THE ASSESSEE WAS NOT A CIVIL CON TRACTOR AND THE ASSESSEE HAD NOT AUTHORIZED ANYONE TO APPEAR BEFORE THE ASSESSING OF FICER AND THE WRITTEN SUBMISSIONS ALLEGEDLY STATED TO HAVE BEEN SUBMITTED ON BEHALF O F THE ASSESSEE WERE NOT FILED BY HIM OR FOR HIM. I.T .A .NO.-2208/DEL/2016 PAGE 6 OF 8 5. ON A CONSIDERATION OF THE ENTIRETY OF THE PECULI AR FACTS AND CIRCUMSTANCES WHEREIN THE LD. AR STATES THAT NO WRITTEN SUBMISSIONS WERE FILED BEFORE THE ASSESSING OFFICER AND TAKING NOTE OF THE FACT THAT EVEN THE ASSESSING OFF ICER NOTES THAT NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE ON 03.03.2011, IN THESE PECU LIAR FACTS AND CIRCUMSTANCES THE OBSERVATIONS, REASONING AND CONCLUSION OF THE CIT(A ) THAT THE FACTUAL NOTING BY THE AO WAS AN INCORRECT OBSERVATION DUE TO OVERSIGHT CANN OT BE UPHELD AS IT IS CONTRARY TO RECORD AND THE CONTRADICTION IS NOT A MINOR CONTRADICTION. ACCORDINGLY IN THE INTERESTS OF JUSTICE, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW. WHENEVER AN ASSESSEE MAKES OUT A CASE THAT THE TAX AUTHORITIES HAVE ARBI TRARILY WHIMSICALLY AND CARELESSLY ASSESSED INCOME WHICH NEVER BELONGED TO HIM ON FACT S WHICH WERE NOT APPLICABLE TO HIM THEN IT IS THE DUTY OF THE COURT TO ADDRESS SUCH AR GUMENTS IF RAISED. HOWEVER, THE JUSTICE DELIVERY SYSTEM IS NOT BLIND AND DOES NOT OPERATE I N VACUUM AND THUS UNABLE TO FATHOM AND ADDRESS WHERE A SO-CALLED ALLEGEDLY IGNORANT AS SESSEE CONSIDERS IT APPROPRIATE TO TAKE THE SYSTEM FOR A RIDE THEN THE ARMS OF JUSTICE ARE LONG ENOUGH TO CATCH THE ERRANT PERSON. THE ABOVE OBSERVATION HAS BEEN MADE IN ORDE R TO ENSURE THAT THERE IS A BALANCE AND PERSPECTIVE MAINTAINED BY THE TAX AUTHORITIES W HILE DECIDING THE ISSUE AND AT THE SAME TIME THE TAXPAYER ALSO PROCEEDS AND EXERCISES HIS C HOICES WITH DUE CARE AND CAUTION IT IS MY UNFORTUNATE DUTY TO NOTICE THAT FILING OF AFFIDA VITS AT TIMES IS TREATED TO BE A VERY CASUAL EXERCISE WHEREIN ARGUMENTS AND ALLEGATIONS AT TIMES MAY APPEAR TO BE RAISED IRRESPONSIBILITY. THE RAMPANT AND INCORRECT BELIEF THAT FILING OF WRONG AFFIDAVITS IS A HARMLESS EXERCISE WITH NO SERIOUS CONSEQUENCES MAY BE BASED ON THE FACT THAT DUE TO LARGE NUMBER OF CASES CLOGGING THE COURTS THE STATE MAY NOT HA VE THE WILL AND MANPOWER TO PROCEED AGAINST EACH AND EVERY WRONG AFFIDAVIT FILED BY THE PARTIES. HOWEVER THE MERE FACT THAT THE STATE FOR THE TIME BEING MAY NOT HAVE ACTED UPON WRONG AFFIDAVITS, FILED CONSCIOUSLY AND DELIBERATELY DOES NOT LAY DOWN THE POSITION OF LAW THAT FILING OF AFFIDAVITS IS A CASUAL, NON SERIOUS, IRRESPONSIBLE EXERCISE WITH NO SERIOUS CON SEQUENCES. IN THE FACTS OF THE PRESENT I.T .A .NO.-2208/DEL/2016 PAGE 7 OF 8 CASE THE ASSESSEE INSISTS THAT NO ONE HAD BEEN AUT HORIZED ON HIS BEHALF. THEREBY STATING THAT THE POWER OF ATTORNEY RELIED UPON BY THE REVEN UE WAS NOT ISSUED BY THE ASSESSEE IN FAVOUR OF ANY COUNSEL. THEN IT GOES WITHOUT SAYIN G THAT ANY SUBMISSIONS ADVANCED BY THE SAID COUNSEL CANNOT AND SHALL NOT BIND THE ASSESSEE . IT MAY NOT BE OUT OF PLACE TO ALSO ADDRESS A SCENARIO WHERE THE ASSESSEE HAVING ISSUED A POWER OF ATTORNEY IN FAVOUR OF A COUNSEL DECIDES TO TAKE THE POSITION THAT THE PRAYE R MADE BY THE SAID COUNSEL ON HIS BEHALF BEFORE AN AUTHORITY WAS NOT THE CORRECT AND DID NOT ADDRESS THE TRUE STATE OF AFFAIRS. AN ASSESSEE CAN SO PLEAD RELYING UPON FACTS AND EVI DENCES ADDRESSING THE TRUE AND ACTUAL STATE OF AFFAIRS AND CAN TO MY MIND SUCCESS FULLY INSIST THAT THE ISSUE BE DECIDED ON THE BASIS OF THE CORRECT FACTS AND NOT AS WRONGLY A RGUED BY HIS AUTHORIZED REPRESENTATIVE. JUDICIAL PRECEDENCE IN FAVOUR OF THE ASSESSEE MAY PERMIT IN CERTAIN CASES TO PLEAD THAT HIS COUNSEL WAS NOT AUTHORIZED TO PLACE WRONG FACTS ON RECORD, THE COURTS CAN CONSIDER ANY SUCH GENUINE PRAYER MADE ON BEHALF OF AN ASSESS EE AND IF SUPPORTED BY FACTS AND EVIDENCE, CAN DIRECT THAT THE ISSUE BE DECIDED ON THE BASIS OF THE CORRECT FACTS AND EVIDENCE WHICH SUPPORTS THE EXPLANATION BROUGHT ON RECORD. HOWEVER WHEN A TAXPAYER MAKES A PRAYER THAT NO SUCH AUTHORITY WAS EXECUTED AND ALSO STATES THAT THE SUBMISSIONS MADE ON HIS BEHALF ARE NOT APPLICABLE TO THIS CASE AT ALL THEN THE TAXPAYER IS REQUIRED TO STATE THE SAID FACT BY WAY OF AN AFFIDAVIT CONSCIOU S OF THE FACT THAT WHATEVER IS STATED THEREIN IS UNDER PENALTY OF PERJURY IN CASE IT IS F OUND TO BE UNTRUE AND INCORRECT. THUS IN SUPPORT OF THE ARGUMENT THAT THE COUNSEL APPEARING BEFORE THE AO WAS NOT AUTHORIZED BY HIM AND THE WRITTEN SUBMISSION FILED WERE NOT ON HI S INSTRUCTION AND THE SIGNATURES IN THE SCANNED COPY ARE NOT HIS THE ASSESSEE IN THE FACTS OF THE PRESENT CASE IS DIRECTED TO FILE AN AFFIDAVIT OR SWORN DOCUMENT DECLARING THAT I (CERTIFY, VERIFY, OR STATE) UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. EX ECUTED ON {DATE} OR IN LIKE MANNER. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND TH E ISSUES ARE RESTORED BACK TO THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. I.T .A .NO.-2208/DEL/2016 PAGE 8 OF 8 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 17 TH OF NOVEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI