Sh. Hari Om Goyal, Panchkula V. ITO, W-4(2), Chandigarh

ITA 249/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7489 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGINDER MITTAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 250; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHES A, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 249/CHD/2018 ASSESSMENT YEAR: 2012-13 SHRI HARI OM GOYAL, VS THE ITO, PLOT NO. 13, INDUSTRIAL AREA, WARD 4(2), PHASE-2, PANCHKULA. CHANDIGARH. PAN : ADIPG7508E (A PPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI YOGINDER MITTAL, ADDL. CIT DATE OF HEARING : 11.07.2018 DATE OF PRONOUNCEMENT : 27.07.2018 ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 18.01.2018 OF CIT(A)-2 C HANDIGARH PERTAINING TO 2012-13 ASSESSMENT YEAR ON VARIOUS GROUNDS ON M ERITS. 2. THE LD. AR HAD MOVED AN ADJOURNMENT APPLICATION, HOWEV ER AT THE TIME OF HEARING, HE CHOSE TO WITHDRAW THE SAME AND S TATED THAT HE WOULD BE PRESSING HIS PRAYER QUA GROUND NO. 1 AS IN THE FACTS OF THE PRESENT CASE, THE IMPUGNED ORDER HAS BEEN PASSED WITH OUT TAKING ON RECORD RELEVANT AND CRUCIAL EVIDENCES FOR DECIDING THE ISSU E. THE SAID GROUND IS REPRODUCED HEREUNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN SUMMARILY REJECTING THE ADDITIONAL EVIDENCE PLACED ON RECORD WHICH GOES TO THE ROOT OF THE ADDITIONS MADE ON TECHNICAL GROUNDS WITHOUT AFFORDI NG ANY OPPORTUNITY OF BEING HEARD ON THE ISSUE WHICH IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AND AS SUCH THE ORDER PASSED IS ARBITRARY AND UNJUSTIFIED. 3. ADDRESSING THE GROUND, THE LD. AR SUBMITTED REFERRING TO PAGE 4 OF THE CIT(A)S ORDER THAT THE ADDITIONS MADE BY THE AO CH ALLENGED BEFORE THE CIT(A) HAS BEEN UPHELD BY THE CIT(A) WITHOUT ADMITTING FRESH ADDITIONAL EVIDENCE WHICH EVIDENCE THE ASSESSEE SOUGHT TO PLACE BEFORE THE SAID AUTHORITY. THE REASONING OF THE CIT(A) FOR THE SAID DECISION WAS THAT THE ADDITIONAL EVIDENCE CONSISTING OF COPY OF THE BANK STATEMENT WAS NOT MADE AVAILABLE TO THE AO. IN THESE CIRCUMSTANC ES, IT WAS HIS ITA-249/CHD/2018. A.Y. 2012-13 PAGE 2 OF 4 LIMITED PRAYER THAT THE COPY OF THE BANK STATEMENT NO DOUBT OUGHT TO HAVE BEEN PLACED BEFORE THE AO AT THE ASSESSMENT STAG E, HOWEVER, THE FACT THAT IT WAS RELEVANT AND CRUCIAL FOR EXPLAINING THE DEP OSITS IS NOT IN DISPUTE. HE AGREED THAT THE ASSESSEE ALSO OUGHT TO HA VE COME BEFORE THE CIT(A) BY WAY OF A PROPER APPLICATION U/R-46A OF THE INCOME TAX RULES WHICH HAS NOT DONE DUE TO THE LAPSES OF THE COUNS ELS REPRESENTING THE ASSESSEE. IN THE CIRCUMSTANCES, IT WAS HIS PRAYER THAT FOR NO FAULT OF THE ASSESSEE HE SUFFERED. THE EVIDENCE IN THESE PECULIAR FACTS AND CIRCUMSTANCES MAY BE ADMITTED. 4. THE LD. SR.DR THOUGH RELIED UPON THE IMPUGNED ORDER, HO WEVER, DID NOT DISPUTE THAT THE EVIDENCE WOULD BE RELEVANT AND CRUCIAL FOR DETERMINING THE ISSUES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. ON A CONSIDERATION THEREOF, WE NOTE THAT THE ASSESSEE BEFORE THE AO AND THE CIT(A) WAS REPRESENTED BY DIFFERENT CHARTERED ACCOUNTANTS (SHRI NARESH SINGLA BEFORE AO AND SHRI KRISHAN JUNEJA BEFORE CIT(A). IT IS SEEN THAT THE AO IN THE COURSE OF THE ASSESSMENT PROCEEDINGS REQUIRED THE ASSESSEE TO JUSTIFY RECEIPT OF RS. 12,50,000/- IN C.C. ACCOUNT NO.410 ON 23.02.2012. SIMILARLY, THE DEPOSITS IN HDFC BANK AND ICICI LTD. ETC. WERE REQUIRED TO BE EXPLA INED. IT IS NOTED BY THE AO THAT LOANS ETC. FROM BAJAJ AUTO FINANCE , TATA CAPITAL LTD., INDIA BULLS FINANCIAL SERVICES, CITI FINANCIAL PL AND RELIANCE PL ETC. HAD ALSO BEEN OBTAINED NOTING THE FACT THAT FOR PAYM ENT OF INTEREST, NO TDS WAS DEDUCTED, THE ASSESSEE WAS REQUIRE D TO EXPLAIN. ADMITTEDLY, EVIDENCES WERE NOT FILED. THE EVIDENCES SOUGH T TO BE PLACED ON RECORD, WE SEE, ARE THIRD PARTY EVIDENCES WHICH BEING BANK STATEMENTS ETC., THE ASSESSEE CANNOT IMPROVE UPON. IN THE CIRCUMSTANCES, THE PRAYER OF THE ASSESSEE BECOMES ALLOWA BLE. A PERSON HAVING APPOINTED AN EXPERT IN HIS FIELD TO REPRES ENT HIM CAN BE BELIEVED TO TRUST THE COMPETENCE AND COUNSEL PROVIDED. IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY THE TRUST OF THE ASSESSE E WAS MISPLACED AT THE ASSESSMENT STAGE AND AGAIN ALSO AT THE STAGE O F APPEAL BEFORE THE CIT(A). THE EVIDENCE SOUGHT TO BE PLACED ON RECOR D AT THE APPELLATE STAGE BEFORE THE CIT(A) ADMITTEDLY WAS ALSO NOT SUPPORTED BY AN APPROPRIATE APPLICATION. IT IS SEEN THAT ADMITTEDLY T HE TWO C.A.S ENTRUSTED TO REPRESENT THE ASSESSEE ON BEHALF OF THE A SSESSEE DID NOT ITA-249/CHD/2018. A.Y. 2012-13 PAGE 3 OF 4 REPRESENT THE ASSESSEE PROPERLY. RELEVANT FACTS WERE NOT PLACED BEFORE THE AO AND THE RELEVANT FACTS SOUGHT TO BE PLACED BEFOR E THE CIT(A) WERE NOT SUPPORTED BY APPROPRIATE APPLICATION. NOTING THE FACT THAT THE EVIDENCES WERE RELEVANT AND CRUCIAL FOR DETERMINING T HE ISSUE, WE DO NOT FIND ANY REASON WHY THE LD. CIT(A) DID ALSO NOT DEEM IT APPROPRIATE TO DIRECT THE ASSESSEE THROUGH ITS COUNSEL TO MAKE APPROPRIATE APPLICATION UNDER RULE 46A OF THE ACT. EVEN O THERWISE, THE ADDITIONAL EVIDENCES BEING RELEVANT AND CRUCIAL FOR DETER MINING THE ISSUES COULD HAVE BEEN ADMITTED UNDER SUB-RULE (5) OF RULE 46A. THE INCOME TAX ACT,1961 HAS SUFFICIENTLY AND ADEQUATELY EMP OWERED THE COMMISSIONER (APPEALS) TO PASS SUCH ORDERS IN THE APPEALS AS HE THINKS FIT U/S 251(1)(C) AND WHEN THIS SECTION IS READ ALONGWIT H THE PROCEDURE TO BE FOLLOWED ARTICULATED BY THE STATUTE IN S ECTION 250 SPECIFICALLY SUB-SECTIONS (4) AND (5), THERE CAN BE NO DOUBT ON THE POWERS OF CIT(A) TO RENDER JUSTICE FOR WHICH PURPOSES, TH E SAID AUTHORITY HAS MORE THAN ADEQUATE POWERS TO CALL FOR FRESH EVIDENC ES. SECTION 250 PROCEDURE IN APPEAL : (1). THE COMMISSIONER (APPEALS) SHALL .. (2) (3) (4) THE COMMISSIONER (APPEALS)MAY BEFORE DISPOSING O F ANY APPEAL, MAKE SUCH FURTHER INQUIRY AS HE THINKS FIT, OR MAY DIRECT THE 5 ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO THE CO MMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)]. (5) THE COMMISSIONER (APPEALS) MAY, AT THE HEARING OF AN APPEAL, ALLOW THE APPELLANT TO GO INTO ANY GROUND OF APPEAL NOT SPECI FIED IN THE GROUNDS OF APPEAL, IF THE COMMISSIONER (APPEALS) IS SATISFIED THAT THE OMISSI ON OF THAT GROUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASONABLE. 5.1 IT MAY NOT BE OUT OF PLACE TO ALSO REFER TO THE SPEC IFIC POWERS VESTED IN THE COMMISSIONER (APPEALS) TO CALL FOR NECESSARY E VIDENCES AND DOCUMENTS SUO MOTO UNDER SUB-RULE (4) OF RULE 46A : RULE 46A : (1) . (2) . (3) . (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE PO WER OF THE [DEPUTY COMMIS- SIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMM ISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF A NY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTIO N OR ON THE REQUEST OF THE [ASSESSING OFFICER]) UNDER CLAUSE (A) OF SUB-SECTIO N (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.] 5.2. IT IS SEEN THAT THE CIT(A) IN THE FACTS OF THE PRESENT CASE HAS PROCEEDED TO ADDRESS THE ISSUES MECHANICALLY FAILING TO EX ERCISE THE AMPLE POWERS VESTED IN HIS OFFICE BY WHICH HE COULD HAVE EN SURED THAT RELEVANT FACTS ARE BROUGHT ON RECORD AND THE TAX PAYE R IS NOT FORCED ON ITA-249/CHD/2018. A.Y. 2012-13 PAGE 4 OF 4 ACCOUNT OF THESE TECHNICAL REASONS TO APPROACH THE NEX T FORUM, THUS SAVING VALUABLE TIME OF ALL CONCERNED. IF A TAXPAYER ON TH E FACE OF THE RECORD ATTEMPTS TO BRING ADDITIONAL EVIDENCE WHICH IDEALLY OUGHT TO HAVE BEEN MADE AVAILABLE BEFORE THE AO AND IT IS FOUND TO BE RE LEVANT AND CRUCIAL FOR DETERMINING THE ISSUE, THEN INSTEAD OF TAKING AN OBSTRUCTIVE VIEW, THE SAID AUTHORITY CONSIDERING THE LEGAL EXPERTISE AVA ILABLE TO THE TAX PAYER SHOULD IDEALLY HAVE FACILITATED THE TAXPAYER IN B ECOMING TAX COMPLIANT AND ENSURING THAT CORRECT AND DUE TAXES ONLY ARE PAID. THE EVIDENCES SOUGHT TO BE BROUGHT ON RECORD, AS WE HAVE NOTICED, ARE THIRD PARTY EVIDENCES WHICH CANNOT BE CREATED BY THE AS SESSEE. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE CIT(A) TO PASS AN ORDER IN ACCORDANCE WITH LAW. THE ASSESSEE IN ITS OWN INTERESTS IS DIRECTED TO ENS URE THAT FULL AND PROPER COMPLIANCES ARE MADE AND THE OPPORTUNITY SO PRO VIDED IS NOT ABUSED AS FAILING WHICH, WE MADE IT CLEAR THAT THE CIT(A) WO ULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY,2018. SD/- SD/- ( DR.B.R.KUMAR) ( DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.