M/S GRAND MUTLIPLEX PROJECTS LIMITED , NAWANSHAR V. INCOME TAX OFFICER,III(4), JALANDHAR

ITA 268/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6846 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Assessee Lawyers: S R BHAGAT
• Keywords: Opportunity of being heard; Principle of natural justice; Non compliance
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT ITA NO. 268/ASR./2018 : ASSTT. YEAR : 2006-07 M/S GRAND MULTIPLEX PROJECTS LTD., 1, K.C. TOWER, NAWANSHAR VS INCOME TAX OFFICER, WARD-III(4), JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. AACCG1810H ASSESSEE BY : SH. S. R. BHAGAT, AR REVENUE BY : SH. BHAWANI SHANKAR, D R DATE OF HEARING : 07.01.2019 DATE OF PRONOUNCEMENT : 07.01.2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.12.2016 OF LD. CIT(A)-2, JALANDHAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THE APPELLATE ORDER IS ILLEGAL, PERVERSE, ARBIT RARY, NOT BASED ON THE FACTS OF THE CASE AND THE LAW. 2. THAT THE LD. CIT (A) ERRED TO DECIDE THE APPEAL WITHOUT SERVICE OF NOTICE OF HEARING AT EMAIL ADDRESS OF TH E COMPANY AS AVAILABLE ON THE WEBSITE OF MINISTRY OF CORPORATE A FFAIRS AND PRESCRIBED UNDER RULE 127(2)(A)(IV) OR 127(2)(B)(II I) OF IT RULES BECAUSE THERE WAS CHANGE IN THE MANAGEMENT OF THE COMPANY AND THE NEW MANAGEMENT WAS NOT AWARE THAT A N APPEAL WAS PENDING OR FIXED FOR HEARING. 3. THAT THE LD. CIT (A) ERRED TO DISMISS THE APPEAL IGNORING THE FACT THAT CASE OF THE ASSESSEE FOR THE AY 2006-07 W AS SELECTED FOR SCRUTINY AS PER ACTION PLAN FOR THE ASSESSMENT YEAR 2007-08 AND NOTICE U/S 143(2) WHICH WAS REQUIRED TO BE SERV ED ON OR BEFORE 30-09-2007 WAS ISSUED ON 04-03-2008. THIS DE FECT IS INCURABLE AND THE AO ILLEGALLY ASSUMED JURISDICTION . IT IS PRAYED THAT ORDER MAY BE CANCELLED. ITA NO. 268/ASR./2018 GRAND MULTIPLEX PROJECTS LTD. 2 4. THAT THE LD. CIT (A) ERRED TO CONFIRM ADDITION O F RS. 3,52,000/- WITHOUT MENTIONING A WORD ON MERIT OF CA SH CREDIT AND IGNORING THE FACT THAT THE ASSESSEE HAD NOT DON E ANY BUSINESS DURING THE RELEVANT YEAR AND SUCH THERE CO ULD NOT ANY UNEXPLAINED CASH WITH THE APPELLANT AND IN VIOLATIO N OF RATIO OF THE JUDGMENT IN THE CASE OF LOVELY EXPORT PVT. LTD. 5. THE APPELLANT CRAVE LEAVE TO ADDITIONAL ANY GROU ND(S) OF APPEAL BEFORE ITS FINALIZATION. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2007 DECLARING NIL INCOME. THE AO, HOWEVER, FRAMED THE ASSESSMENT AT AN INCOME OF RS.3,52,000/- WHICH WAS THE AMOUNT OF UNSECURED LOANS RECEIVED BY THE ASSESSEE FROM SH. K ULWANT SINGH. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE EX-PARTE ORDER BY OBSERVING IN PARA 4 OF THE IMPUGNED ORDER AS UNDER: 4. FROM THE ABOVE STATED FACTS AND IN THE CIRCUMST ANCES OF THE CASE, IT IS CLEAR THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL FILED BY IT. AS SUFFICIENT OPPORTUNITY OF BEING HEA RD WAS ALREADY PROVIDED TO THE ASSESSEE, I AM OF THE OPINION THAT NO MORE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE FIRM. THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS BEING DECIDED E X-PARTE ON THE BASIS OF MATERIAL AVAILABLE ON THE RECORD. ON ACCOU NT OF CONTINUOUS NON COMPLIANCE, I AM OF THE OPINION THAT THE ASSESS EE HAS NOTHING TO SAY WITH REGARD TO THE ADDITIONS MADE U/S 143(3) OF THE IT ACT IN ITS CASE. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE U/S 143(2) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) WAS SERVED UPON THE ASSESSEE. THEREFORE, T HE ASSESSMENT FRAMED BY THE AO WITHOUT SERVING THE NOTICE U/S 143(2) OF THE ACT WAS NOT VALID. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAD NOT GIVEN ANY OPP ORTUNITY OF BEING HEARD AND NO NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. ITA NO. 268/ASR./2018 GRAND MULTIPLEX PROJECTS LTD. 3 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS NOTICED THAT THE LD. CIT(A) IN PARA 3 OF THE IMPUGNED ORDER HAS MENTIONE D THAT NOTICES OF HEARING WERE ISSUED TO THE ASSESSEE FROM TIME TO TIME BUT THERE WAS NO COMPLIANCE. HE DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT DISCUSSING THE I SSUES ON MERIT. IT IS ALSO NOTICED THAT THE LD. CIT(A) NOWHERE MENTIONED IN THE IMPUGN ED ORDER THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SE TTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 07/01/2019) SD/- (N. K. SAINI) VICE PRESIDENT DATED: 07/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR