Shri Sukhdev Singh, Bassi Pathana V. ITO, Mandi Gobindgarh

ITA 233/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2024 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Invalid notice; Opportunity of being heard; Principle of natural justice; Assessment record

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH !', # $ BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO.233/CHD/2019 / ASSESSMENT YEAR : 2009-10 SHRI SUKHDEV SINGH #6-C, VILLAGE PAWALA, PO MACCHI KALAN, BASSI PATHANA DISSTT. FATTEHGARH,PUNJAB VS. THE ITO, WARD, SIRHIND, PUNJAB ./ PAN NO: CBAPS9025G / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI TEJ MOHAN SINGH ! / REVENUE BY : SHRI MANJIT SINGH, CIT ' # $/ DATE OF HEARING : 14/08/2019 %&'( $/ DATE OF PRONOUNCEMENT : 06/09/2019 %&/ ORDER PER DIVA SINGH , JM: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 04/02/2019 OF CIT(A) -1LUDHIANA PERTAINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOW ING GROUNDS: 1. THAT THE LD. ASSESSING OFFICER HAS ERRED IN LAW IN FAILING TO MENTION WHETHER NOTICE UNDER SECTION 271(L)(C) ISSUED WAS FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND AS SUCH PENALT Y IMPOSED AND UPHELD BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN PURSUANCE O F AN INVALID NOTICE IS ILLEGAL, ARBITRARY & UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW IN DISMISSING THE APPEAL EX-PARTE WITHOUT AFFORDING AN OPPORTUNITY OF HEARING WHICH IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AND AS SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONE R OF INCOME TAX(APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE I MPOSITION OF PENALTY OF RS.2,35,800/- U/S 271(L)(C) OF THE ACT WHICH IS ILLEGAL, ARBITRAR Y & UNJUSTIFIED. ITA-233/CHD/2019 A.Y. 2009-10 PAGE 2 OF 3 4. THAT THE PENALTY IMPOSED UNDER SECTION 271(L)(C) OF THE ACT IS NOT IMPOSABLE IN AS MUCH AS THERE IS NEITHER ANY CONCEALMENT OF INCOME NOR FURNISHING OF ANY INACCURATE PARTICULARS OF INCOME AND AS SUCH THE ORDER PASSED UNDER SECTION 271(L)(C) OF THE ACT IS ILLEGAL, ARBITRARY & UNJUSTIFIED. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X UPHOLDING THE IMPOSITION OF PENALTY UNDER SECTION 271(L)(C) OF THE ACT IS ERRON EOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 2. ON PERUSAL OF THE RECORD IT IS SEEN THAT THE ORDER UNDER CHALLENGE IS AN EX-PARTE ORDER IN REGARD TO THE NON PARTICIPA TION OF THE ASSESSEE. ACCORDINGLY, IT WAS DEEMED APPROPRIATE TO PROCEED W ITH THE HEARING EX- PARTE QUA THE ASSESSEE APPELLANT ON MERITS AFTER HE ARING THE LD. CIT- DR. HOWEVER, BEFORE THE RISING OF THE BENCH IT WAS STATED THAT THE ARGUING COUNSEL WAS IN THE OTHER COURT. 3. THE RECORD SHOWS THAT THE CIT(A) DISMISSED THE A SSESSEE'S APPEAL HOLDING AS UNDER : 2. HOWEVER, WHEN THE SAID APPEAL WAS CALLED OUT FOR HE ARING, THERE WAS NO RESPONSE FROM THE APPELLANT. REPEATED REMINDERS FIXING UP VARIOUS DATES OF HEARI NG REMAINED UNHEEDED. A REFERENCE TO THE APPELLATE RECORD REVEALS THAT T HE APPELLANT IS NOT INTERESTED IN SERIOUSLY PROSECUTING THE INSTANT APPEAL, WHICH WAS VOLUNTARILY FILED BY HIM. THE APPEAL IS, THEREFORE, BEING DECIDED WITHOUT ANY FUR THER REFERENCE TO THE APPELLANT. COPIES OF THE ORDERS OF ASSESSMENT AND THE SUBSEQUENT APPE LLATE ORDERS HAVE ALSO BEEN PROCURED FROM THE ASSESSMENT RECORDS TO TAKE A DECISION ON T HE IMPUGNED PENALTY. (EMPHASIS SUPPLIED) 4. BOTH THE PARTIES WERE HEARD. 5. ON A PERUSAL OF THE RECORD IT IS EVIDENT THAT TH E ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A). T HE LD. AR STATED THAT NO NOTICE WAS RECEIVED BY THE ASSESSEE. ON A PERU SAL OF THE ABOVE EXTRACT, IT IS NOT COMING OUT AS TO HOW THE NOTICE FIXED FOR HEARING WAS COMMUNICATED TO THE ASSESSEE OR EVEN THE FACT THAT ON WHICH DATES THE ITA-233/CHD/2019 A.Y. 2009-10 PAGE 3 OF 3 CASE WAS FIXED FOR HEARING FOR WHICH SOME NOTICES W ERE STATED TO HAVE BEEN SENT. IN THE ABSENCE OF RELEVANT DISCUSSION O N THESE ISSUES, THE STATEMENT MADE ON BEHALF OF THE ASSESSEE THAT NOTIC E WAS NOT RECEIVED, CANNOT BE OUTRIGHTLY DISCARDED. WITHOUT GETTING IN TO THIS DEBATE AS WHETHER THE NOTICES WERE SENT OR NOT, IN THE CIRCUM STANCES, NOTING THE FACT THAT THE ASSESSEE ADMITTEDLY HAS NOT BEEN HEAR D, IT IS DEEMED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS DIRECTED TO MAKE F ULL AND PROPER COMPLIANCES BEFORE THE SAID AUTHORITY AS FAILING WH ICH IT IS MADE CLEAR THAT THE CIT(A) SHALL BE AT LIBERTY TO PASS AN ORDE R ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOU NCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH SEPT.,2019. SD/- !', ( DIVA SINGH) # $ / JUDICIAL MEMBER AG/POONAM &) *+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT4. ' - ( )/ THE CIT(A) 5. +./ 0 , $ 0 , 123/4 / DR, ITAT, CHANDIGARH 6. /3 5# / GUARD FILE &) ' / BY ORDER, 6 ! / ASSISTANT REGISTRAR