SH. MUZAFFER JAN PAMPORI, SRINAGAR V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE, SRINAGAR

ITA 233/ASR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5191 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 10-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIR CHARAN DAS DR
• Keywords: Opportunity of being heard; TDS; Set aside; Audi alteram partem; FORM 26AS
• Section: 133(6); 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. 233/ASR/2019 / ASSESSMENT YEAR : 2009-10 MUZAFFAR JAN PAMPORI AMIRA KADAL, LAL CHOWK SRINAGAR, KASHMIR THE ASST. CIT, CIRCLE SRINAGAR, KASHMIR ./ TAN NO. AOJPP3773J / APPELLANT / RESPONDENT ! / ASSESSEE BY : SHRI A.M. ZARGAR, CA (WRITTEN SUBMIS SION) ! / REVENUE BY : SHIR 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 . 18/03/2019 OF LD. CIT(A)-1, AMRITSAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE LAW & FACTS AND OF THE CASE, THE HON'BLE CIT( A) WAS NOT JUSTIFIED IN REFUSING TO DECIDE ON GROUND NO. 1 RAISED IN THE AP PEAL ON THE PLEA THAT THIS IS GENERAL IN NATURE. THE SAID GROUND READS AS ' THE A SSESSEE WAS NOT SERVED ANY QUESTIONNAIRE. HE DIDN'T GET AN OPPORTUNITY TO PRES ENT THE CASE'. 2. ON THE LAW AND FACTS OF THE CASE, THE HON'BLE C1T (A ) HAS ERRED IN UPHOLDING THE ASSESSMENT MADE BY LD. ITO WITHOUT SERVING THE A PPELLANT ASSESSEE A NOTICE ON THE ADDRESS MENTIONED IN APPEAL FORM 35. 3. THE HON'BLE C1T(A) HAS ALSO ERRED IN SUSTAINING THE ASSESSMENT MADE BY LD. A.O AT HIS BACK WITHOUT GIVING THE APPELLANT AN OPPO RTUNITY OF BEING HEARD . 2 4. THE HON'BLE CIT(A) HAS ERRED IN UPHOLDING THE ADDIT ION MADE BY LD. A.O WITHOUT EVALUATION OF MATERIAL ON RECORD..HE 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR SUBSTITUTE ANY OTHER GROUND NECESSARY TO MEET ENDS OF JUSTICE. 3. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEH ALF OF THE ASSESSEE HOWEVER WRITTEN SUBMISSIONS HAS BEEN FURNISHED WHICH IS PL ACED ON RECORD AND HAS BEEN CONSIDERED WHILE DECIDING THE APPEAL OF THE ASSESSE E. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE B ASIS OF AIR INFORMATION THAT THE ASSESSEE HAD MADE PAYMENT OF RS. 4,61,200/- AGAINS T CREDIT CARD, ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO THE ASSESSEE WHICH REM AINED UN-COMPLIED. THEREAFTER THE A.O. ISSUED THE NOTICES UNDER SECTION 14 8 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) AND UNDER SECTION 14 2(1) OF THE ACT. IN RESPONSE, THE ASSESSEE FURNISHED THE RETURN OF INCOME ON 17/01/2011 DE CLARING AN INCOME OF RS. 6,640/-. THE A.O. HOWEVER FRAMED THE ASSESSMENT EXPARTE UNDER SECTION 144 OF THE ACT BY MAKING AN ADDITION OF RS. 4,61,200/-. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY PASSING THE EXPARTE ORDER AND SUSTAINED THE ADDITION MADE BY THE A.O. LD. CIT(A) MENTIONED THAT THE APPEAL WAS FIXED FOR HEARI NG ON 05/10/2018, 22/02/2019 AND 08/03/2019 BUT NONE APPEARED NOR ANY WRITTEN SUBMISSI ON HAD BEEN FILED. 6. NOW THE ASSESSEE IS IN APPEAL. 7. LD. COUNSEL FOR THE ASSESSEE IN HIS WRITTEN SUBMISS ION HAS MENTIONED THAT NO NOTICE WAS SERVED UPON THE ASSESSEE ON THE ADDRESS AS PR OVIDED IN COLUMN NO. 17 OF FORM NO. 35 AND THAT THE LD. CIT(A) DID NOT ADJUDICATE. GROUND NO. 1 OF THE APPEAL WHICH SAYS THAT THE ASSESSEE DID NOT RECEIVE ANY QUESTIO NNAIRE. THE WRITTEN SUBMISSION FURNISHED BY THE LD. COUNSEL FOR THE ASESSEE READ AS U NDER : ''YOUR HONORS. THE SITUATION IN KASHMIR IS NO SECRE T FROM ANY BODY CLOSURE OF BUSINESS ESTABLISHMENTS ON ACCOUNT OF HARTALS, CURF EWS & CORDON & SEARCH OPERATIONS HAS BEEN A ROUTINE AFFAIR. BUSINESSES AR E SERIOUSLY DISRUPTED & SO ARE THE COMMUNICATIONS. IT HAS ALSO COME TO LIGHT THAT EVEN POSTMEN RENDER DEFICIENT SERVICES DUE TO ABOVE REASONS & SHOW LETTERS DELIVE RED WHEN IN FACT THESE ARE NOT. IN VIEW OF THESE CIRCUMSTANCES, THE APPELLANT BEGS TO SAY THAT 3 1) THAT HE WAS DEPRIVED OF AN OPPORTUNITY TO PRESENT H IS CASE DUE TO NON- RECEIPT OF NOTICES BOTH AT ASSESSMENT & APPEAL STAG E. 2) THAT LD. CIT (A) WAS NOT JUSTIFIED IN DISMISSING TH E APPEAL ON THE GROUND OF NON-RESPONSE OF THE APPELLANT ASSESSEE BECAUSE HE D IDN'T SERVE ANY NOTICE ON ADDRESS AS PROVIDED BY HIM IN COLUMN 17 OF FORM 35. THE SAID ADDRESS IS OF COUNSEL OF THE ASSESSEE M/S WAHIDI ASSOCIATES, CA'S WHO IS A SENIOR MEMBER OF THE PROFESSION. EVEN HIS TELEPHONE NO. IS PROVIDED IN F ORM 35A & HE COULD HAVE BEEN INFORMED TELEPHONICALLY IN VIEW OF PREVAILING SITUA TION IN KASHMIR VALLEY. 3) THE LD. CIT(A) WAS ALSO NOT JUSTIFIED IN FAILING TO ADJUDICATE GROUND NO. 1 OF THE APPEAL WHICH SAYS THAT THE APPELLANT ASSESSEE DIDN' T RECEIVE ANY QUESTIONER. HE SHOULD HAVE, IN THE LEAST CALLED A REMAND REPORT FR OM THE ASSESSING OFFICER T0 KNOW WHETHER NOTICES /QUESTIONER WERE DULY SERVED ON THE ASSESSEE. 4) IT IS A WELL SETTLED LAW THAT EVEN IF AN ASSESSM ENT IS MADE U/S 144, THE LD. ITO IS BOUND TO TAKE ALL AVAILABLE MATERIAL ON RECORD. IN THE INSTANT CASE THE LD. ITO HAS VIOLATED THIS CARDINAL PRINCIPLE WHICH MAKES THE AS SESSMENT MADE BY HIM U/S 144 BAD IN LAW AS HE HAS NOT PERUSED THE AVAILABLE MATE RIAL ON RECORD. FOR INSTANCE, FROM THE ITR FILED BY APPELLANT ASSESS, LD. ITO HAS TAKEN ONLY INCOME COMPONENT FROM ASSESSEE'S RETURN (PARA 3 OF ASSESSMENT ORDER) WHILE IGNORING OTHER DETAILS LIKE DETAILS OF BANK ACCOUNT & TDS DATA. HE COULD HAVE S IMPLY REQUISITIONED ASSESSEE'S BANK STATEMENT FROM THE BANK & KNOWN THA T CARD PAYMENTS HAVE BEEN DULY MADE FROM HIS BANK. EVEN CREDIT FOR TDS O F RS. 20,357/- WHICH EVEN APPEARS ON APPELLANT ASSESSEE'S FORM 26AS HAS NOT B EEN GIVEN. IN VIEW OF ABOVE ARGUMENTS, IT IS PRAYED THAT THE O RDER OF THE LD. ITO MAY BE QUASHED OR IN ALTERNATIVE SET ASIDE BACK TO HIM FOR PROPER ASSESSMENT AFTER GIVING THE APPELLANT ASSESSEE AN OPPORTUNITY OF BEING HEAR D. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPORT ED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 9. 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 LD. CIT(A) PASSED THE IMPUGNED ORDER EXPARTE, HE SIMPLY STATED THAT THE APPEAL WAS FIXED FOR HEARING ON 05/10/2018, 22/02/2019 AND 08/03/2019, HOWEVE R, NOWHERE IT IS MENTIONED THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PARTEM . 10. WE, THEREFORE BY KEEPING IN VIEW THE PRINCIPLES OF N ATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH 4 IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11. 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