Pushkar Real Estate Pvt. Ltd., Chandigarh V. ITO, W-4(1), Chandigarh

ITA 262/CHANDI/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5655 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B K NOHRIA
• Keywords: Principle of natural justice; Set aside; Audi alteram partem
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH .., ! '# #$ %, & '( BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M ITA NO. 261 & 262/CHD/2019 ASSESSMENT YEAR : 2006-07 & 2007-08 PUSHKAR REAL ESTATE PVT. LTD. BOOTH NO. 98-99, SECTOR 38-C CHANDIGARH THE ITO W-4(1) SECTOR 17- CHANDIGARH PAN NO: APPELLANT RESPONDENT !' ASSESSEE BY : SHRI B.K. NOHRIA, CA #!' REVENUE BY : SHRI G.S. PHANI KISHORE, CIT DR SHRI RITESH PARMAR, SR. DR $ %! & DATE OF HEARING : 24/09/2019 '()*! & DATE OF PRONOUNCEMENT : 03/10/2019 ')/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE SEPARATE ORDERS EACH DATED 30/11/2018 OF THE LD. CIT(A)-2, C HANDIGARH . 2. SINCE THE ISSUES INVOLVED IN BOTH THE APPEALS AR E COMMON AND THE APPEALS WERE HEARD TOGETHER SO THESE ARE BEING DISP OSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. COMMON GROUNDS RAISED IN BOTH THESE APPEALS READ AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT (A)-2 CHANDIGARH HAS NOT AFFORDED SUFFICIENT OPPORT UNITY THOUGH THE COUNSEL OF THE APPELLANT APPEARED ON ALL THE DATES EXCEPT THE LAST HEARINGS AFTER THE APPEAL WAS ADJOURNED AND PRAY FOR RESTORING THE APP EAL TO THE LEARNED CIT(A)-2 CHANDIGARH TO PRESENT THE CASE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT(A)-2 CHANDIGARH HAS ERRED IN LAW AND FACTS IN U PHOLDING THE ORDER OF THE 2 LEARNED ITO WARD 4(1) CHANDIGARH WITHOUT DISCUSSING THE GROUND OF APPEAL IN DETAIL AND PASSING A SPEAKING ORDER ON THE GROUNDS OF APPEAL. 3. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AMEND OR DELETE ONE OR MORE OF THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DISPOSED OFF. 4. FROM THE ABOVE GROUNDS IT IS GATHERED THAT MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EX-PARTE ORDER PASSED BY TH E LD. CIT(A) AND THE CONFIRMATION OF THE ADDITIONS MADE BY THE A.O. WITH OUT PASSING THE SPEAKING ORDER. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2006-07 ON 28/11/2006 DECLARING NIL IN COME. THE CASE WAS REOPENED UNDER SECTION 148 OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS ACT) AFTER RECORDING REASONS. THE A.O. MADE TH E ADDITION OF RS. 55,00,000/- BY OBSERVING THAT THE ASSESSEE COULD NOT EXPLAIN TH E SOURCE OF INVESTMENT THEREFORE THE SAID INVESTMENT WAS HELD AS INVESTMEN T FROM UNDISCLOSED SOURCES AND THAT THE ASSESSEE FAILED TO BRING ANY PLAUSIBLE EXPLANATION FOR SUPPORTING THE DOCUMENTS ON RECORD. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EX-PARTE BY OBSERVING THA T THE VARIOUS NOTICES WERE ISSUED TO THE ASSESSEE IN RESPONSE TO WHICH EITHER NONE APPEARED OR THE COUNSEL SOUGHT ADJOURNMENT AND THAT THE LAST NOTICE WAS ISS UED ON 22/10/2018 FOR HEARING ON 01/11/2018 AND THE CASE WAS ADJOURNED TO 29/11/2018 AS FINAL OPPORTUNITY BUT NONE APPEARED ON THE SAID DATE, HO WEVER WRITTEN SUBMISSIONS WERE FILED. 7. THE LD. CIT(A) SUSTAINED THE ADDITION MADE BY TH E A.O. BY PASSING THE EX- PARTE ORDER. HE OBSERVED THAT THE A.O. HAD PASSED V ERY REASONED ORDER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. NOW THE ASSESSEE IS IN APPEAL. 3 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NEITHER THE A.O. NOR THE LD. CIT(A) HAD GIVEN REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE AND EVEN THE EXPLANATION GIVEN BY THE ASSESSEE BEFO RE THE LD. CIT(A) HAS NOT BEEN CONSIDERED. HE SUBMITTED THAT THE MATTER MAY B E RESTORED TO THE A.O. FOR FRESH ADJUDICATION AFTER GIVING AN OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 10. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AS SESSEE WAS NON COOPERATIVE AND DID NOT APPEAR BEFORE THE LD. CIT(A) THEREFORE THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL OF THE ASSESSEE EX-PART E AND SINCE THE ASSESSEE COULD NOT SATISFY THE A.O. BY BRINGING THE DOCUMEN TARY EVIDENCES ON RECORD, THE ADDITION WAS RIGHTLY MADE BY THE A.O. AND SUSTA INED BY THE LD. CIT(A). 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED THAT THE A.O. WHILE MAKING THE ADDITION OBSERVED THAT THE ASSESSE E COULD NOT PRODUCE GENUINENESS OF THE INVESTMENT AND FAILED TO BRING O UT ANY PLAUSIBLE EXPLANATION FOR SUPPORTING DOCUMENTS ON RECORD. HE ALSO MENTION ED THAT THE COUNSEL OF THE ASSESSEE FILED WRITTEN REPLY WHICH WAS PLACED ON TH E RECORD AFTER TEST CHECKED. HOWEVER, NOTHING IS MENTIONED IN THE ASSESSMENT ORD ER THAT WHAT WERE THE SUBMISSIONS OF THE ASSESSEE IN THE WRITTEN REPLY AN D AS TO WHY THE A.O. WAS NOT SATISFIED FROM THE EXPLANATION OF THE ASSESSEE. IT IS ALSO NOTICED THAT THE LD. CIT(A) PASSED AN EX-PARTE ORDER HE SIMPLY STATED TH AT THE A.O. HAD PASSED A VERY REASONED ORDER CONSIDERING ALL THE FACTS AND C IRCUMSTANCES OF THE CASE. IT IS RELEVANT TO POINT OUT THAT THE LD. CIT(A) MENTIONED IN THE IMPUGNED ORDER THAT THE CASE WAS FIXED FOR HEARING ON 01/11/2018 AND WA S ADJOURNED TO 29/11/2018 ON WHICH DATE NOBODY APPEARED AND NO WRITTEN SUBMIS SION WAS FILED. HOWEVER IT IS NOT CLEAR AS TO WHETHER THE NOTICE FOR HEARIN G ON 29/11/2018 WAS SERVED UPON THE ASSESSEE OR NOT. IT IS WELL SETTLED THAT N OBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE THEREFORE, KEEPING IN 4 VIEW THE PRINCIPLES OF NATURAL JUSTICE DEEM IT APPR OPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE A.O TO BE ADJUDICATED AFRES H IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS. 12. FOR THE A.Y. 2007-08 IT WAS THE COMMON CONTENTI ON OF THE BOTH THE PARTIES THAT THE FACTS ARE SIMILAR AND EVEN THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE IDENTICAL AS WERE FOR THE A.Y. 2006-07. THEREFO RE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTAN DIS. ACCORDINGLY, THE CASE RELATING TO A.Y. 2007-08 IS ALSO REMANDED BACK TO T HE FILE OF THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW ALONGWITH THE CASE FOR THE A.Y. 2006-07. 13. IN THE RESULT, BOTH THE ABOVE APPEALS OF THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 03/10/2019 ) SD/- SD/- #$ % .., (SANJAY GARG ) ( N.K. SAI NI) & '(/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 03/10/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE