T.S.Raghav, Sunder Nagar V. ITO, Sunder NAgar

ITA 270/CHANDI/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3208 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-06-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 15-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Assessee Lawyers: RAJINDER PAL SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; TDS; Set aside; Audi alteram partem
• Section: 143(3)

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.270/CHD/2020 ASSESSMENT YEAR : 2015-16 T.S. RAGHAV VILL: SAKRAH, P.O. CHAMBI TEHSIL SUNDER NAGAR, MANDI-175019 HIMACHAL PRADESH THE ITO SUNDER NAGAR-175019 HIMACHAL PRADESH PAN NO: AAAGB0018A APPELLANT RESPONDENT !' ASSESSEE BY : SHRI RAJINDER PAL SHARMA, ADVOCATE #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 16/06/2021 '()*! & DATE OF PRONOUNCEMENT : 16/06/2021 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 27/01/2020 OF THE LD. CIT(A), PALAMPUR. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS BARRE D BY LIMITATION BY 80 DAYS. THE ASSESSEE MOVED AN APPLICATION FOR CONDONATION OF DELA Y DT. 01/07/2020 STATING THEREIN AS UNDER: APPEAL BEFORE THE ITAT CHANDIGARH TAX RECOVERED AMO UNTING RS 1.65320/- DECIDED BY A.O. SUNDER NAGAR AND RATIFIED BY THE CI T PALAMPUR H.P. APPLICATION FOR THE CONDONATION OF THE DELAY IN FIL ING THE APPEAL. SIR, THE APPELLANT HUMBLY SUBMITS AS UNDER:- 1. THAT THE SAID APPEAL HAS BEEN FILED ON A LATER DATE BECAUSE OF THE COVID-19 AND LOCK DOWN DECLARED AND INSTRUCTED THERE BY AS P ER THE REGULATIONS OF THE CENTRAL AND STATE GOVTS BOTH AS WELL AS THE SAID OR DER WAS BEING APPEALED AGAINST WELL IN TIME WITHIN THE AMBIT OF LIMITATION PERIOD BUT ALL OF A SUDDEN THE 2 COVID-19 CAUSED THE HAZARD AND HENCE THE DELAY DUE TO THE REASON BONA -FIDE HAS BEEN CAUSED AS SUCH. MORE OVER THE AUTHORITY BE LOW WHILE HEARING OF FIRST APPEAL HAS DECIDED THE CASE ON THE SAME ISSUE OF CA USE OF DELAY. THE APPEAL WAS FILED MANUALLY BY THE APPELLANT BEFORE THE APPE LLATE COURT AND SAME WAS INSTRUCTED TO BE FILED ON LINE ON A BELATED DATE. A ND THE APPELLANT HAD BEEN TO REMOTE AREA OF KINNOUR DISTT OF H.P.IN ORDER TO VIS IT THE SITE AND EXECUTION THEREOF AND HENCE COULD NOT RETURN TO HOME IN TIME AND AS S UCH THE DELAY WAS CAUSED IN FILING THE SAID APPEAL ONLINE. THE APPELLATE COURT HAS DECIDED THE MATTER OF THE ISSUE OF LIMITATION AND THE ORDER IS QUIET SILENT O VER THE MERITS OF THE CASE. 2. THAT ALSO ALONG WITH THE SAID REASON OF DELAY DUE T O THE OUTBREAK OF PANDEMIC WAS FAR BEYOND CONTROL OF THE APPELLANT/AP PLICANT AND'HENCE IT IS NOT LIABLE TO BE TERMED AS THE DELAY CAUSED ON BEHALF O F THE APPLICANT/ APPELLANT. 3. THAT THE APPELLANT WAS INSTRUCTED TO DEPOSIT THE TA X AMOUNT OF ORDER UNDER APPEAL RS 165320/- BY THE ITO SUNDER NAGAR REGARDING THE ASSE SSMENT ORDER DATED OF ITO SUNDER NAGAR I .E. ORDER UNDER APPEAL WHEREAS THE APPELLANT WAS ORDERED AND RECOVERED THE SAID AMOUNT OF ADDITIONAL TAX AMOUNT OF RS 1,65,320/- FROM APPELLANT . HAD THE APPELLANT NOT BEEN TO DEPOSIT THE SAID TAX AMOUNT T HEN IN THAT EVENT THE AUTHORITY BELOW WAS BENT UPON ORDERING THE SEIZURE OF CC LIMIT ACCOUNT OF THE APPELLANT/ ASSESEE. 4 . THAT THE APPELLANT HAD PREFERRED APPEAL BEFORE THE CIT PALAMPUR H.P. SEEKING THE RELIEF THEREBY FOR QUASHING THE ORDER UNDER APP EAL BUT THE APPELLATE AUTHORITY PALAMPUR CARED NOT A FIG FOR THE APPEAL F ILED AND WITHOUT LOOKING INTO THE MATTER SAME WAS DISMISSED ON THE TECHNICAL GROU NDS OF THE LIMITATION AND THE AUTHORITY BELOW REMAINED QUIET SILENT ON THE MERITS OF THE CASE. 5. THAT THE SAID APPEAL WAS FILED MANUALLY BEFORE T HE CIT PALAMPUR BY THE ASSESEE/ APPELLANT BUT THE SAME WAS RETURNED BACK T O APPELLANT /ASSESEE BY INSTRUCTING HIM TO FILE THE SAME ONLINE. THE APPELL ANT WAS OUT OF STATION AND HAD BEEN BUSY IN THE REMOTE AREA OF KINNOUR DISTT. AND IN THE MEAN TIME DELAY WAS CAUSED FOR FILING THE APPEAL ONLINE LATER ON THE AP PEAL WAS NOT ALLOWED BY CIT PALAMPUR AND NO MERITS OF THE CASE WERE TAKEN AS GR ANTED . THE CASE WAS DECIDED AGAINST THE APPELLANT. THEN WHILE THE APPEL LANT APPROACHED TO THE LD ITAT THEN COVID-19 THE PANDEMIC OUTBREAK CAUSED HUG E DELAY IN FILING THE SAID APPEAL WHEN THERE WAS STRICT LOCKDOWN IMPOSED UPON THE ALL THE PEOPLE TO MOVE THROUGH THE OPEN AREAS TO AVOID THE SAID PANDE MIC. THOUGH THE APEX COURT HAS EXEMPTED THE LIMITATION PERIOD VIDE ITS O RDER REGARDING THE SAME. IT IS THEREFORE RESPECTFULLY PRAYED THAT KEEPING IN VIEW OF THE AVERMENT MADE ABOVE THE APPEAL PREFERRED BEFORE THIS LD COUR T MAY KINDLY BE ALLOWED ALONG WITH THE APPLICATION FOR THE CONDONING THE DE LAY AND FURTHER THE AMOUNT OF TAX RECOVERED BY THE AUTHORITY BELOW FOR RS 1.65 320/-MAY KINDLY BE ORDERED TO BE REFUNDED BACK IN FAVOUR OF THE APPELLANT IN THE INTEREST OF JUSTICE. SD/- TEK SINGH RAGHWA(CONT.) THROUGH COUNSEL R.P. SHARMA ADV SUNDER NAGAR DISTT. MANDI H.P. 3 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE DELAY IF ANY OCCURRED WAS DUE TO PANDEMIC OF COVID-19 , THEREFORE THE SAME MAY BE CONDONED. 4. THE LD. CIT DR COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES , IT APPEARS THAT THE DELAY IN FILING THE APPEAL OCCURRED DUE TO COVID-19 PANDEMIC W HICH WAS BEYOND THE CONTROL OF THE ASSESSEE, I THEREFORE BY KEEPING IN VIEW THE AFO RESAID APPLICATION FURNISHED BY THE ASSESSEE CONDONE THE DELAY AND THE APPEAL IS ADMITTED . 6. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE AUTHORITY BELOW HAS DECIDED THE CASE EX ERCISING THE POWER VESTED IN IT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 AND DEPICTED A LONG PARA REGARDING THE SHORTCOMINGS IN CASH ACCOUNT FOR WHIC H THERE WERE NO INSTRUCTIONS TO EXERCISE THE POWERS AT ALL AND WAS INSTRUCTED ME RELY TO GO THROUGH THE CONCEPT OF GROSS RECEIPTS AND MISMATCH ONLINE THERE OF AND REGARDING THE TDS MISMATCH ONLY, BUT THE LD. AUTHORITY BELOW WHEN FOU ND NO ANY DISCREPANCY THROUGHOUT IN THE DATA ENTRIES REGARDING THE RECEIP TS / SALES AND TDS MISMATCH THEN IT MOVED ITS DIRECTION TOWARDS THE CASH RECEIP TS AND PAYMENTS THEREIN AND INDICATED THE ADDITION INTO INCOME IN THE EXAGGERAT ED FIELD OF OPERATION OF LIMITED SCRUTINY AND CAUSED A HUGE BLUNDER WHILE AR RIVING AT THE AMOUNT OF ORDER BY ENHANCING THE ADDITION INTO ORIGINAL RETURNED IN COME OF ASSESSEE. THAT THE CASE WAS FIXED UNDER LIMITED SCRUTINY AND WAS TO BE INVESTIGATED SOME ISSUES TECHNICAL AND THE BASIS OF ASSESSMENT ORDER MADE BY THE A.A CUM ITO SUNDER NAGAR HAS ERRED DUE TO CLEAR VIOLATION OF LA W OF JURISDICTION AND IN THE UTTER ABSENCE OF THE SAME THE ISSUES SETTLED THEREB Y AS PER THE ORDERS OF CASS. THE ITO CONCERNED HAS AS SUCH DISOBEYED THE INDICATI ONS AND INSTRUCTIONS AND HAS DEPLOYED THE POWERS OUT OF DISCRETION WHICH IS AGAINST NATURAL JUSTICE AND PROVISIONS OF THE LAW. NOW THEREFORE THE APPELLANT DISSATISFIED WITH THE O RDER OF THE I.T.O. SUNDER NAGAR DISTT. MANDI AND PREFERRED THIS APPEAL. 2. THE APPELLATE AUTHORITY BELOW HAS CONSIDERED THE CASE FOR DELAY IN FILING THE SAID APPEAL AND DECIDED THE CASE WITHOUT ANY DISCUS SION AND WITHOUT PAYING ANY HEEDS TOWARDS THE MERITS OF THE CASE. THE SAID APPEAL BEFORE THE RESPONDENT NO. 2 WAS FIL ED MANUALLY WELL IN TIME AND IN THE MEAN TIME AND IN THE MEANTIME THE ASSESSEE W ENT TO KINNOUR DISTT AT WORK SITE AFTERWARDS THE APPEAL WAS RETURNED BACK TO ASS ESEE AND THEREBY HE WAS ORDERED TO FILE IT ONLINE DULY SIGNED DIGITALLY AND THE PROCESS OF ONLINE FILING CONSUMED TIME MAXIMUM WHEN THE ASSESSEE CAME BACK A ND GOT THE SAME WORK UPDATE AFTER APPLYING FOR THE DIGITAL SIGNS HENCE T HERE WAS OBVIOUSLY A DELAY BUT 4 UNINTENTIONAL AND UNPLANNED ONE WHICH HAS NOT BEEN GIVEN ANY HEEDS TOWARDS BY THE RESPONDENT NO. 2. HENCE THE INSTANT APPEAL B EFORE THIS LD. COURT PLEASE. 7. FROM THE AFORESAID GROUNDS IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 2 RELATES TO THE PROPER OPPOR TUNITY OF BEING HEARD, NOT PROVIDED BY THE LD. CIT(A). 7.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E- FILED THE RETURN OF INCOME ON 18/03/2016 DECLARING AN INCOME OF RS. 10,27,180/-, LA TER ON THE CASE WAS SELECTED FOR SCRUTINY. THE A.O. FRAMED THE ASSESSMENT AT AN INCOME OF RS. 14,42,180/- BY MAKING THE ADDITION OF RS. 4,15,000/-. 8. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE AND DID NOT CONDONE THE DELAY IN FILING THE APPEAL. 9. NOW THE ASSESSEE IS IN APPEAL. 10. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) DID NOT PROVIDE ANY OPPORTUNITY OF BEING HEARD RELATING TO THE DELAY I N FILING THE APPEAL WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE, AS THE ASSESSEE WAS RESIDING IN REMOTE AREA OF KINNOUR DISTRICT, HIMACHAL PRADESH. IT WAS STATED THAT T HE LD. CIT(A) DID NOT PROVIDED THE PROPER OPPORTUNITY OF BEING HEARD BEFORE DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE. 11. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPOR TED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 12. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE. IT IS A LSO NOTICED THAT THE LD. CIT(A) DID NOT ASK THE ASSESSEE TO EXPLAIN THE DELAY IN FILING THE APPEAL BEFORE HIM, IF ANY. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER T HE MAXIM, AUDI ALTERAM PARTEM . 13. I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE O F THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REA SONABLE OPPORTUNITY OF 5 BEING HEARD TO THE ASSESSEE, IF THE ASSESSEE IS IN A POS ITION TO GIVE THE PROPER EXPLANATION FOR THE DELAY IN FILING THE APPEAL AND THE LD. CIT(A) IS SATISFIED THEN THE APPEAL MAY BE ADMITTED AND DECIDED IN ACCORDANCE WITH L AW, ON MERIT. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/06/2021 ) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 16/06/2021 (+! ,-.- 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