Sultan Singh Bisla, Gurgaon V. ITO, Ward- 1(1), Gurgaon

ITA 247/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4295 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S ANANT
• Keywords: Opportunity of being heard; Reasonable cause; Reason to believe
• Section: 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 247/DEL/2018 ASSESSMENT YEAR: 2010-11 SULTAN SINGH BISLA, VS. ITO, WARD 1(1), H.NO. 4718, SECTOR 23A, GURGAON GURGAON HARYANA (PAN: ABIB1745Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ANKIT GUPTA, ADV. REVENUE BY : SH. B.S. ANANT, SR. DR ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 08.11.2017 OF THE LD. CIT(A)-1, GURGAON PERTAINI NG TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THAT, THE CIT(A) HAS ERRED IN NOT CONDONING THE DELAY IN FILLING OF APPEAL AND TREATING THE SAM E AS DEFECTIVE, WITHOUT APPRECIATING THAT THE ASSESSE E IS COVERED WITH REASONABLE CAUSE OF DELAY IN FILLIN G OF APPEAL. 2. THAT THE NOTICE ISSUED U/S 148 AND ASSESSMENT ORDER PASSED U/S 147/143(3) AND THE ADDITIONS/ DISALLOWANCES MADE ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 3. THAT THE REASON TO BELIEVE WAS NEVER FRAMED BY THE AO AND NOTICE ISSUED IS WITHOUT ANY TANGIBLE 2 MATERIAL, WHICH IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION AND WITHOUT APPLICATION OF MIND BY THE ASSESSING OFFICER. 4. THAT NO PROPER STATUTORY APPROVAL HAS BEEN TAKEN BY THE ASSESSING OFFICER U/S 151 OF THE I.T. ACT, 1961, AS REQUIRED. IF ANY APPROVAL IS TAKEN THEN THE APPROVAL IS IN VERY MECHANICAL MANNER WITHOUT APPLICATION OF MIND BY THE STATUTORY AUTHORITY HENCE THE PROCEEDINGS INITIATED U/S 147/148 IS ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 5. THAT, THE ASSESSING OFFICER/CIT(A) ERRED IN COMPLETING THE ASSESSMENT PROCEEDINGS U/S 147R.W.S.L48, WITHOUT SUPPLYING THE REASONS RECORDED TO THE ASSESSEE APPELLANT, WHICH IS ILLEGA L, BAD IN LAW AND WITHOUT JURISDICTION. 6. THAT THE ADDITIONS/ DISALLOWANCES MADE ARE ILLEGAL, UNJUST, HIGHLY EXCESSIVE AND ARE NOT BASED ON ANY MATERIAL ON RECORD BY THE ASSESSING OFFICER. THE TOTAL INCOME OF THE APPELLANT HAS BEEN WRONGLY AND ILLEGALLY COMPUTED BY THE ASSESSING OFFICER AT RS. 10,87,230/- AS AGAINST INCOME DECLARED AT RS.4,37,230/-. 7. THE ASSESSING OFFICER ERRED IN MAKING THE ADDITION OF RS. 6,50,000.00 ON ACCOUNT OF THE ARREAR OF GRATUITY RECEIVED DURING THE YEAR ON THE RETIREMENT OF THE ASSESSEE APPELLANT U/S 10(10)(III ) OF THE ACT DUE TO THE REVISION IN CIVIL SERVICE RUL ES OF STATE OF HARYANA. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE AO. 8. THE ASSESSING OFFICER ERRED IN MAKING THE ADDITION OF RS. 1,85,090.00 ON ACCOUNT OF THE 3 ARREAR OF LEAVE ENCASHMENT U/S 10(10AA)(III) OF THE ACT RECEIVED DURING THE YEAR ON THE RETIREMENT OF THE ASSESSEE APPELLANT DUE TO THE AMENDMENT IN CIVIL SERVICE RULES OF STATE OF HARYANA. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE AO. 9. THAT, THE CIT(A)/ AO FAILED TO APPRECIATE THAT THE ASSESSEE IS THE EMPLOYEE OF THE CHAUDHARY CHARAN SINGH HARYANA AGRICULTURE UNIVERSITY, WHICH IS A STATE GOVERNED UNIVERSITY AND INSTITUTED FROM PUNJAB AGRI. UNIV. LUDHIANA IN FEB. 1970 BY PARLIAMENT ACT. 10. THAT THE CIT(A)/ AO ERRED IN HOLDING THAT THE ASSESSEE APPELLANT IS NOT THE STATE EMPLOYEE , WHICH IS TOTALLY WRONG AND PERVERSE, BY IGNORING THE FACT THAT THE CHAUDHARY CHARAN SINGH HARYANA AGRICULTURE UNIVERSITY IS A STATE CONTROLLED AND A STATE GOVT STATUTORY BODY AND THE GRATUITY RECEIVED BY THE EMPLOYEES OF THE UNIVERSITY IN EXEMPT AS PER PROVISION OF SECTION 10(10)(I) OF THE INCOME TAX ACT, 1961. 11. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER ARE MADE MERELY ON THE BASIS OF SURMISES AND CONJECTURES AND CONTRARY TO FACTS AND EVIDENCE ON RECORD AND CANNOT BE JUSTIFIED. 12. THAT INTEREST U/S 234B OF THE INCOME TAX ACT, 1961 HAS BEEN WRONGLY AND ILLEGALLY CHARGED AND HAS BEEN WRONGLY WORKED OUT. 13. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER AND/OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 4 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. IN THIS CASE SH. ANKIT GUPTA, LD. COUNSEL FOR T HE ASSESSEE/ADVOCATE ALONGWITH ASSESSEE APPEARED BEFO RE THE BENCH. LD. COUNSEL FOR THE ASSESSEE AND ASSESSEE STATED T HAT LD. FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE ASSESSEE BEING TIME BARRED BY 2 YEARS AND 10 MONTHS. THEY FURTHER STATED THAT THE LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY IN PRODUCING THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE DELAY I N DISPUTE. LD. COUNSEL FOR THE ASSESSEE HAS FURTHER STATED THAT T HE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY TH E DECISION OF THE ITAT, SMC-I, DELHI BENCH DECISION DATED 16.6.2016 P ASSED IN ITA NO. 1307/DEL/2016 (AY 2010-11) IN THE CASE OF RAM KANWA R RANA VS. ITO. LD. COUNSEL FOR THE ASSESSEE AS WELL AS THE A SSESSEE IS READY TO MAKE THE PAYMENT OF RS. 20,000/- IN THE TREASURY OF ITAT ON ACCOUNT OF COST/COMPENSATION, IF THIS BENCH CONDONE D THE DELAY IN DISPUTE AND SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER THE DECISION STATED ABOVE. TO SUPPORT THE AFORESAID CONTENTION, ASSESSEE HAS FIL ED HIS AFFIDAVIT DATED 27.10.2018. HE ALSO UNDERTAKES THAT HE WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT AND WILL APPEAR BEFORE THE LD. CIT(A) ON WHICHEVER DATE FIXED BY THE BENCH. 5 4. ON THE OTHER HAND, LD. DR HAS NOT RAISED ANY SER IOUS OBJECTION TO THE REQUEST FOR THE ASSESSEES COUNSEL. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. AFTER PERUSING THE RELEVANT RECORDS AVAILABLE WITH ME ALONGWITH THE ORDERS OF THE REVENUE AUTHORITIES AND THE TRIBU NALS ORDER AS REFERRED BY THE ASSESSEES COUNSEL AND THE AFFID AVIT OF THE ASSESSEE, I AM OF THE CONSIDERED VIEW THAT LD. CIT (A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE IN SUB STANTIATING HIS CLAIM. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, IN VIEW OF THE DECISION OF THE ITA T, SMC-I, DELHI BENCH DATED 16.6.2016 PASSED IN ITA NO. 1307 /DEL/2016 (AY 2010-11) IN THE CASE OF RAM KANWAR RANA VS. ITO AND ANY OTHER DECISION/EVIDENCE TO BE FILED BY THE ASSESSEE BEFORE HIM AND GIVE SUFFICIENT OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. C IT(A) ON 03.12.2018 AT 10.00 AM AND WILL REMAIN COOPERATIVE IN THE PROCEEDINGS AND NOT TO TAKE ANY UNNECESSARY ADJOURNMENT. THERE IS NO NEED TO ISSUE NOTICE, B ECAUSE THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT AND TH E ASSESSEE HIMSELF HAS NOTED THE DATE OF APPEARANCE BEFORE THE LD. CIT(A) ON THE ORDER SHEET ITSELF. FURTHER, T HE DELAY IN 6 DISPUTE I.E. 2 YEARS AND 10 MONTHS APPROX. IS HER EBY CONDONED, SUBJECT TO THE CONDITION THAT ASSESSEE SH OULD DEPOSIT THE COST/COMPENSATION OF RS. 20,000/- (RUP EES TWENTY THOUSAND) BEFORE THE TREASURY OF THE ITAT IM MEDIATELY AND SHOW THE PROOF THEREOF TO THE LD. CIT(A) ON THE DATE OF HEARING FIXED BEFORE HIM. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30-10-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 30-10-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. 7