Smt. Anu Gupta, Chandigarh V. ITO, W-4(4), Chandigarh

ITA 312/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6520 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Assessee Lawyers: HARRY RIKKY
• Keywords: Bogus purchase; Opportunity of being heard; Set aside
• Section: 69C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 312/CHD/2018 (ASSESSMENT YEAR : 2011-12) SMT. ANU GUPTA VS. THE ITO H.NO. 712/1, SECTOR 41-A W-4(4) CHANDIGARH CHANDIGARH PAN NO. AAYPG0245K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. HARRY RIKKY, ADVOCATE DEPARTMENT BY : SMT. CHANDRAKANTA, SR. DR DATE OF HEARING : 26/02/2019 DATE OF PRONOUNCEMENT : 26/02/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 27/12/2017 OF LD. CIT(A)-2, CHANDIGARH. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THE PRESEN T APPEAL: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), CHANDIGARH IS DEFECTIVE BOTH IN LAW AND FACTS OF TH E CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER WITHOUT GIVING ANY PROPER AND REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESENT HER CASE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER AS THE RE-OPENING OF THE CASE U/S 147 R.W.S. 148 OF THE I.T. ACT, 1961 I S BAD IN LAW AND DESERVES TO BE QUASHED. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER REGARDING ADDITION OF RS.5,44,176/- U/S 69C OF THE I.T. ACT. THIS ADDITIO N IS UNCALLED FOR AND DESERVES TO BE DELETED. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER REGARDING ADDITION OF RS.39,50,000/- ON ACCOUNT OF DIFFERENCE IN SALES CO NSIDERATION OF H. NO. 1432, SECTOR 40-B, CHANDIGARH. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER REGARDING ADDITION OF RS.50,00,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOS IT. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER REGARDING ADDITION OF RS.2,00,000/- ON ACCOUNT OF UNEXPLAINED INCREASE IN CAPITAL. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 2 8. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER REGARDING ADDITION OF RS. 1,18,005/- ON ACCOUNT OF LONG TERM CAPITAL GAIN S. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 9. THAT ANY OTHER GROUND MAY KINDLY BE ALLOWED TO BE T AKEN AT THE TIME OF APPEAL WITH DUE PERMISSION. 3. VIDE GROUND NO. 2 THE GRIEVANCE OF THE ASSESSEE RELATES TO THE UPHOLDING OF THE ASSESSMENT ORDER WITHOUT GIVING PROPER AND R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER ON THE BASIS OF INFORMATION AVAILABLE WITH THE DEPARTMENT THAT THE ASSESSEE MADE BOGUS PURCHASES TO THE TUNE OF RS. 5,44,176/- FROM A GROU P KNOWN AS M/S BHANWAR LAL JAIN GROUP OF MUMBAI THROUGH VARIOUS CONCERNS ISSUE D A NOTICE UNDER SECTION 148 OF THE ACT. 5. IN RESPONSE THE ASSESSEE SUBMITTED THAT SHE HAS E-FILED RETURN OF INCOME ON 23/05/2015 DECLARING AN INCOME OF RS. 4,46,980/ -, THE ASSESSING OFFICER FRAMED THE ASSESSMENT AT AN INCOME OF RS. 1,03,29,4 60/- BY MAKING THE VARIOUS ADDITIONS. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY PA SSING THE EX-PARTE ORDER. 7. NOW THE ASSESSEE IS IN APPEAL. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE THEREFORE THE EX-PARTE ORD ER PASSED WITHOUT GIVING OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A) WAS NO T JUSTIFIED. HE REQUESTED TO RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 9. IN HER RIVAL SUBMISSIONS LD. SR. DR STRONGLY SUP PORTED THE IMPUGNED ORDER PASSED BY THE LD.CIT(A). 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN T HE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL EX-PARTE, HE SIMPLY STATED THAT NOTICE OF HEARING ON 27/12/2017 WAS ISSUED ON 15/12/2017 BUT NONE ATTENDED HOWEVER NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT T HE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT N OBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . 3 11. WE THEREFORE KEEPING IN VIEW THE PRINCIPLE OF N ATURAL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 26/02/2019) SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 26/02/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR