Shri Naresh Sharma, Kurukshetra V. ITO-Ward-2, Kurukshetra

ITA 259/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8245 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 26-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Opportunity of being heard; Condonation of delay; Set aside; Audi alteram partem
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.259/CHD/2020 ASSESSMENT YEAR :2011-12 SHRI NARESH SHARMA, C/O GARG GARG & ASSOCIATES, KOTHIN NO. 35, FIRST FLOOR, SECTOR-7 KURUKSHETRA(HR) VS. THE ITO WARD-2, KURUKSHETRA PAN NO: BLZPS7706Q APPELLANT RESPONDENT ASSESSEE BY : SHRI ASHWANI KUMAR, C.A REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT DATE OF HEARING : 07/01/2021 DATE OF PRONOUNCEMENT : 07/01/2021 ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORD ER OF THE LD. CIT(A), KARNAL DT. 07/02/2020. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS BARRE D BY LIMITATION BY 29 DAYS. THE ASSESSE MOVED AN APPLICATION FOR CONDONATION OF DELAY WHICH READ AS UNDER: SUBJECT: CONDONATION OF DELAY IN APPEAL NO. ITA 259 /CHANDI/2020 IN NARESH SHARMA VS. ITO-WARD-2, KURUKSHETRA RESPECTFULLY PRAYED: - 1. I HAVE RECEIVED THE APPEAL ORDER OF CIT(A), KARNAL ON DATED 27/02/2020 AGAINST WHICH ABOVE REFERRED APPEAL WAS FILED. 2. ACCORDINGLY THE DUE DATE FOR FILING THE APPEAL BEFO RE ITAT FELL DUE ON 25/04/2020. 3. THAT DUE TO COVID LOCK DOWN FROM 23/03/2020 ONWARDS I COULD NOT GET IT PREPARED , SIGN AND DISPATCH IT BEFORE 25/04/2020. 4. SINCE IT HAS CAUSED THE DELAY OF 29 DAYS, IT MAY KI NDLY BE CONDONED AS IT WAS DUE TO UNAVOIDABLE CIRCUMSTANCES 5. THE AFFIDAVIT IN THIS REGARD IS ALSO ENCLOSED HEREW ITH. 2 YOURS FAITHFULLY SD/- NARESH SHARMA APPELLANT IN SUPPORT OF THE ABOVE SAID APPLICATION THE ASSESSEE ALSO FILED AN AFFIDAVIT WHICH IS PLACED ON RECORD. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR TH E ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATION AND SUBMITTED THAT THE DELAY IN FILING THE APPEAL OCCURRED DUE TO COVID-19 THEREFORE THE SAME MAY BE CO NDONED. 4. LD. DR ALTHOUGH OPPOSED THE CONDONATION OF DELAY BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT APPEARS THAT THE DELAY OF 29 DAYS IN FILING THE APPEAL OCCURRED DUE TO COVID-19 WHICH WAS BEYOND T HE CONTROL OF THE ASSESSEE THEREFORE THE DELAY OF 29 DAYS IN FILING OF APPEAL IS CONDONED AND THE APPEAL IS ADMITTED. 6. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AN O PPORTUNITY OF BEING HEARD IN THE MATTER BE PROVIDED TO THE APPELLANT AS THE NON APPE ARANCE BEFORE THE LD. CIT(A), KARNAL WAS NOT DUE TO NON CO-OPERATION BUT INADVERTENTLY A ND FOR OTHER REASONS. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT NEEDS AN OPPORTUNITY OF BEING HEARD AS THE LD. A.O. HAD GROSSLY VITIATED THE JUDICIAL PROPRIETY BY RELYING ON THE STATEMENT OF THIRD PARTY .RECORDED AT THE BACK OF T HE ASSESSEE, AND NOT PROVIDING THE OPPORTUNITY TO CROSS EXAMINE. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT NEEDS AN OPPORTUNITY OF BEING HEARD AS THE LD. A.O. HAD GROSSLY ERRED IN LAW AND VITIATED THE JUDICIAL PROPRIETY IN BRUSHING ASIDE THE ORIGINAL DOCUMENTARY EVIDENCES F ILED , BUT RELYING ON THE BALD STATEMENT OF THE THIRD PARTY. 4 THE APPELLANT CRAVES LEAVE TO ADD, DELETE OR MODIFY ANY OR ALL GROUNDS OF APPEAL 7. THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EX PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING DUE AND REASONABLE OPPORT UNITY OF BEING HEARD. 3 8. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE F ILED THE RETURN OF INCOME DECLARING AN INCOME OF RS. 1,36,650/-. THE A.O. ON THE BASIS OF THIS INFORMATION THAT HE ASSESSEE DEPOSITED CASH AMOUNTING TO RS. 56,58,000/- I N HIS SAVING BANK ACCOUNT MAINTAINED WITH HDFC BANK LTD. INITIATED PROCEEDINGS UND ER SECTION 147 R.W.S 148 OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS AC T). IN RESPONSE THE ASSESSEE FURNISHED THE COPY OF ACKNOWLEDGMENT OF RETURN OF INCOM E AND BANK STATEMENT. THE A.O. WAS NOT SATISFIED FROM THE EXPLANATION OF THE ASS ESSEE AND MADE THE ADDITION OF RS. 31 LAC ACCORDINGLY THE INCOME WAS ASSESSED AT RS. 32,36,650/- VIDE ORDER DT. 26/12/2018. 9. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A)WHO DISMISSED THE APPEAL EXPARTE BY OBSERVING IN PARA 3.1, AS UNDER: 3.1 FINDINGS :- THE ASSESSEE HAS MADE NO APPEARANCE IN THIS CASE AL THOUGH VARIOUS OPPORTUNITIES WERE GIVEN. THE FIRST HEARING NOTICE SENT TO THE APPELLA NT ON 26.11.2019 FIXING THE DATE OF HEARING ON 11.12.2019 EVOKED NO RESPONSE. THE SECOND NOTICE ON 17.12.2019 FIXING THE DATE OF HEARING ON 02.01.2020 A;SO INVOKED NO RESPONSE. THE THIRD NOTICE ON 13.01.2020 FIXED THE DATE OF HEARING ON 23.01.2020. THE FOURTH NOTICE ON 24.01.2020 FIXED THE DATE OF HEARING ON 05.02.2020. STILL THERE HAS BEEN NO COMPLIANCE. IN SPITE OF VARIOUS OPPORTUNITIES BEING PROVIDED TO THE APPELLANT, NO DOCUMENTS OR EXPLANAT IONS HAVE BEEN PROVIDED BY HIM. IT STRENGTHENS MY BELIEF THAT THE APPELLANT HAS NOTHIN G TO ADD OR SUBMIT IN RESPECT OF THE ADDITIONS MADE BY THE AO. THE HON'BLE GUJRAT HIGH COURT IN THE CASE OF PR.CIT -3 VS. ASHOK JI CHANDUJI THAKUR IN ORDER DATED 27.06.2018 IN R/TAX APPEAL NOS. 710 TO 714 OF 2018 AND 717 OF 2018 HAVE HELD THAT IN THE CASE OF NON-COOPERATIVE ATTITUDE OF THE ASSESSE E DESPITE VARIOUS OPPORTUNITIES 7 BEING GRANTED AT THE AO AS WELL AS THE LEVEL OF CIT(A), T HE ADDITIONS MADE BY THE AO WAS JUSTIFIED AND THE CIT(A) WAS ALSO RIGHT IN CONFIRMI NG THE SAME. ACCORDINGLY, I CONFIRM THE ADDITIONS MADE BY THE AO . 10. NOW THE ASSESSEE IS IN APPEAL. 11. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTIC E FOR HEARING WAS SERVED UPON THE ASSESSEE THEREFORE THE LD. CIT(A) WAS NOT JUSTI FIED IN PASSING THE IMPUGNED ORDER EXPARTE AND SUSTAINING THE ADDITION MADE BY THE A. O. 12. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 4 13. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT THE LD. CI T(A) PASSED THE IMPUGNED ORDER EXPARTE. HE SIMPLY STATED THAT THE CASE WAS FIXED FOR HEARING ON 05/02/2020 VIDE NOTICE DT. 24/01/2020 BUT THERE WAS NO COMPLIANCE. HOWEVER, NOTHING IS BROUGHT ON RECORD THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PARTEM . 14. I THEREFORE BY KEEPING IN VIEW THE PRINCIPLES OF NA TURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF LD. CIT(A), TO BE ADJUDICATED AFRESH, IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 07/01/2021. SD/- ( N.K. SAINI) VICE PRESIDENT AG DATE: 07/01/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, CHANDIGARH 6. GUARD FILE