Late Sh. Jaswant Singh through, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 323/ASR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5594 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 01-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A. NO. 323 (ASR)/2016 ASSESSMENT YEAR: 2007-08 LATE SH. JASWANT SINGH THROUGH L/H SH. HARPREET SINGH PROP. M/S SAJJAN SINGH JASWANT SINGH TARN TARN ROAD, AMRITSAR. VS. I.T.O. WARD-3 (2), AMRITSAR. PAN: AKSPS0892C (APPELLANT) (RESPONDENT) APPELLANT BY: SH. HARPREET SINGH RESPONDENT BY: SH. RAHUL DHAWAN, (D. R.) DATE OF HEARING: 19.04.2017 DATE OF PRONOUNCEMENT: 16.05.2017 ORDER PER DIVA SINGH, JM : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 29.02.2016 OF CIT (A)-1 AMRITSAR, PERTAINING TO ASST. YEAR 2007-08 ON VARIOUS GROUNDS WHE REIN THE EX- PARTE ORDER IS ASSAILED AS HAVING BEEN DECIDED WITHOUT HE ARING THE ASSESSEE. THE RECORD SHOWS THAT THE ASSESSEE WHO IS STATED TO BE RUNNING RICE SHELLERS DECLARED AN INCOME OF RS 10,570/-. SAID RETUR N WAS PICKED UP FOR SCRUTINY IN VIEW OF THE FACT THAT THE ASSESSEE WAS FOUND TO HAVE ACCEPTED UNSECURED LOAN IN THE NAME OF HARPREET SINGH A MOUNTING TO RS. 4,95,000/-. THE ASSESSEE WAS FOUND TO HAVE FAILED TO PR OVE GENUINENESS AND CAPACITY OF THE CREDITORS DESPITE OPPORT UNITY LEADING TO THE ADDITIONS BEING MADE BY AN ORDER PASSED U/S 144 BY THE ASSESSING OFFICER. 2. THE ASSESSEE CAME IN APPEAL BEFORE THE CIT (A) WHO DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT IN VIEW OF THE FOLLOWING FACTS THE ASSESSEE IS NOT SERIOUS IN PURSUING THE APPEAL FILED. SI NOTICE DT. FIXATION DT MODE OF SERVICE REMARKS NARRATING FATE 1. 05.11.2014 17.11.2014 SPEED POST REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 2. 31.12.2015 12.01.2016 SPEED POST REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY ITA NO.323(ASR)/2016 ASST. YEAR 2007-08 - 2 - WRITTEN REPLY FILED 3. 13.01.2016 22.01.2016 SPEED POST ASSESSEE SEEK ADJOURNMENT AND THE CASE WAS ADJOURNED FOR 06.02.2016 4. 06.02.2016 REMAINED UNCOMPLIED & UNATTENDED, A S NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 3. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. T HE IMPUGNED ORDER HAS BEEN ASSAILED ON THE FOLLOWING GROUNDS BY THE ASSESSEE: 1. THAT APPEAL OF THE ASSESSEE WAS FIXED FOR HEARI NG FOR 22/01/2016 BUT THIS WAS GOT ADJOURNED TO 05/02/2016. 2. ON 05/02/2016, THE APPELLANT ALONG WITH HIS COUN SEL ATTENDED THE OFFICE OF CIT(A) BUT WERE TOLD BY THE ADMN. OFFICER OF CIT (A ), THAT CIT(A) WAS AWAY TO DELHI AND WOULD RETURN ON 08/02/2016. HETOLD THE A PPELLANT TO CONTACT SOME OFFICIAL OF CIT(A) OFFICE. 3. THE APPELLANT ALONG WITH HIS COUNSEL CONTACTED T HE OFFICIAL (MR.SIKANDER) IN THE OFFICE OF CIT (A) AND WERE TOLD BY HIM AS WELL, THAT CIT(A) WAS AWAY TO DELHI AND WOULD-RETURN ON 08/02/2016. THE OFFICIAL ASKED FOR WRITTEN SUBMISSIONS WHICH WERE TO BE FILED IN THE CASE AND THESE WRITTE N SUBMISSIONS WERE GIVEN TO THE SAID OFFICIAL, WHO TOLD THE APPELLANT THAT THE SAME WOULD BE DULY CONSIDERED. 4. BUT ON 29/02/2016, THE CIT(A) DISMISSED THE APPE LLANT'S APPEAL HOLDING THAT NO BODY ATTENDED ON 05/02/2016, THOUGH THE CIT (A), HIMSELF WAS AWAY TO DELHI ON 05/02/2016 AND THE APPELLANT HAD ATTENDED ON 5/02/2016 AND HAD ALSO FILED HIS WRITTEN SUBMISSIONS WHICH THE OFFICI AL DID NOT PUT UP BEFORE HIM. 5. THE CIT(A) HAS ERRED IN DISMISSING THE APPELLANT 'S APPEAL ON THE GROUND THAT THE APPELLANT DID NOT ATTEND HIS OFFICE ON 05/02/20 16 THOUGH THE APPELLANT HAD ATTENDED HIS OFFICE ON 05/02/2016 AND HAD ALSO SUBM ITTED HIS WRITTEN SUBMISSIONS, WHICH HAVE NOT BEEN CONSIDERED BY THE CIT(A) WHILE DISMISSING THE APPEAL THOUGH HE HIMSELF WAS NOT AT AMRITSAR ON 05/02/2015. 7. IT IS THEREFORE PRAYED THAT THE SUBMISSIONS OF T HE APPELLANT MADE BEFORE THE CIT(A) DATED 05/02/2016, INCLUDING CONFIRMATION OF CREDIT BE CONSIDERED AND ADDITION MADE BY THE ASSESSING OFFICER BE DELETED O R IN THE ALTERNATIVE, ORDER OF CIT(A) DATED 29/02/2016 BE SET ASIDE AND HE BE DIRE CTED TO PASS A FRESH ORDER AFTER CONSIDERING THE APPELLANT'S SUBMISSIONS FILED ON 05/02/2016. 8. ANY OTHER GROUND THAT MAY BE TAKEN UP DURING THE COURSE OF HEARING OF APPEAL. 4. IN SUPPORT OF THE ALLOWABILITY OF THE CLAIM, FOLLOWING FACTS S ET OUT IN THE STATEMENT OF FACTS WERE RELIED UPON :- IT IS SUBMITTED, THAT SH. JASWANT SINGH, PROP: OF THE FIRM DIED IN AUGUST 2006. 'THEREAFTER BANK ACCOUNT OF THE FIRM WAS FREEZED AN D THE FIRM WAS CLOSED. ALL THE ASSETS OF THE FIRM INCLUDING STOCKS, MACHINERY, LAND ETC, WERE DISPOSED OFF TO CLEAR THE BANK OVERDRAFT/LOANS ETC. THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08 WAS FIXED BY THE A.O IN 2009, AND AT T HAT TIME, ITS LEGAL HEIR SH. HARPREET SINGH WAS BEHIND BARS DUE TO SOME FAMILY D ISPUTE AND HENCE COULD NOT ATTEND THE ASSESSMENT PROCEEDINGS BEFORE THE AS SESSING OFFICER. AS IT WAS A TIME BARRING ASSESSMENT, SO THE A.O. FRAMED EX-PART E ASSESSMENT AND WHILE FRAMING ASSESSMENT ADDED CREDIT OF RS. 495000/- IN THE NAME OF HARPREET SINGH, WITHOUT ALLOWING ANY OPPORTUNITY TO THE ASSE SSEE. MORE OVER, AS THE L/H WAS BEHIND BARS AT THAT TIME, SO HE COULD NOT APPEA R BEFORE THE A.O. AND COULD NOT EXPLAIN HIS CASE. 2. BUT IT IS SUBMITTED THAT SH. HARPREET SINGH HAD AD VANCED RS. 495000/- TO THE FIRM BY CHEQUES, DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08. CONFIRMATION OF THE SAME COULD NOT BE FILED BEFORE THE ASSESSING ITA NO.323(ASR)/2016 ASST. YEAR 2007-08 - 3 - OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS THE APPELLANT WAS IN JAIL AT THAT TIME. HOWEVER THE SAME IS BEING ENCLOSED WH ICH WAS ALSO FILED BY HIM WITH THE CIT(A) ON 05/02./2016, WHICH HAS NOT BEEN CONSIDERED 3. SO AN APPEAL AGAINST THE SAID ORDER OF THE A.O. WA S FILED ON 28/01/2010 BEFORE THE CIT(A) AND AT THAT TIME THE APPELLANT WA S STILL BEHIND BARS AND THE APPEAL PAPERS WERE SIGNED BY HIM WHILE HE WAS STILL IN JAIL. 4. AS PER CIT(A) ORDER, NOTICE FIXING THE CASE WAS ISSUED ON 05/11/2014. BUT AS THE ASSESSEE HAD DIED, SO THE BUSINESS OF THE AS SESSEE WAS CLOSED, LONG BACK, SO NO SUCH NOTICE WAS EVER RECEIVED BY THE AP PELLANT. NOTICE DATED 31/12/2015 WAS RECEIVED MUCH AFTER THE DATE FIXED F OR HEARING I.E. 12/01/2016. NOTICE DATED 13/01/2016 WAS RECEIVED FI XING THE CASE FOR 22/01/2016 IN RESPONSE TO WHICH APPELLANT' COUNSEL ATTENDED THE CIT(A) OFFICE ON 20/01/2016 AND REQUESTED FOR ADJOURNMENT, AND THE C ASE WAS ADJOURNED TO 05/02/2016. 5. ON 05/02/2016, THE APPELLANT ALONG WITH HIS COUNSEL ATTENDED THE OFFICE OF CIT(A) BUT WERE TOLD BY THE ADMN. OFFICER OF CIT (A), THAT CIT(A) WAS AWAY TO DELHI AND WOULD RETURN ON 08/02/2016. HE TOLD THE A PPELLANT TO CONTACT SOME OFFICIAL OF CIT(A) OFFICE. 6. THE APPELLANT ALONG WITH HIS COUNSEL CONTAC TED THE OFFICIAL (MR.SIKANDER) IN THE OFFICE OF CIT (A) AND WERE TOLD BY HIM AS WE LL, THAT CIT(A) WAS AWAY TO DELHI AND WOULD RETURN ON 08/02/2016. THE OFFICIAL ASKED FOR WRITTEN SUBMISSIONS WHICH WERE TO BE FILED IN THE CASE AND THESE WRITTEN SUBMISSIONS WERE GIVEN TO THE SAID OFFICIAL, WHO TOLD THE APPEL LANT THAT THE SAME WOULD BE DULY CONSIDERED. 7. BUT ON 29/02/2016; THE CIT(A) DISMISSED THE AP PELLANTS APPEAL HOLDING THAT NO BODY ATTENDED ON 05/02/2016, THOUGH THE CIT(A), HIMSELF WAS AWAY TO DELHI ON 05/02/2016 AND THE APPELLANT HAD ATTENDED ON 5/02/2016 AND HAD ALSO FILED HIS WRITTEN SUBMISSIONS. 8. THE CIT(A) HAS ERRED IN DISMISSING THE APPELLAN T'S APPEAL ON THE GROUND THAT THE APPELLANT DID NOT ATTEND HIS OFFICE ON 05/02/20 16 THOUGH THE APPELLANT HAD ATTENDED HIS OFFICE ON 05/02/2016 AND HAD ALSO SUBM ITTED HIS WRITTEN SUBMISSIONS, WHICH HAVE NOT BEEN CONSIDERED BY THE CIT(A) WHILE DISMISSING THE APPEAL THOUGH HE HIMSELF WAS NOT AT AMRITSAR ON 05/ 02/2015. 9. IT IS THEREFORE PRAYED THAT THE SUBMISSIONS OF THE APPELLANT MADE BEFORE THE CIT(A) DATED 05/02/2016, INCLUDING CONFIRMATION OF CREDIT BE CONSIDERED AND ADDITION MADE BY THE ASSESSING OFFICER BE DELETED O R IN THE ALTERNATIVE, ORDER OF CIT(A) DATED 29/02/2016 BE SET ASIDE AND HE BE DIRE CTED TO PASS A FRESH ORDER AFTER CONSIDERING THE APPELLANT'S SUBMISSIONS FILED ON 05/02/2016. 5. AT THE TIME OF HEARING, THE LEGAL HEIR OF THE ASSESSEE S HRI. HARPREET SINGH WHO HAS INFACT FILED THE APPEAL BEFORE THE CIT (APPEA LS) AS WELL AS THE ITAT WAS PRESENT IN PERSON. RELIANCE WAS PLACED UPON THE ASSERTIONS MADE IN THE GROUNDS AND STATEMENT OF THE FACTS PLACED ON RECORD. ON THE BASIS OF THE SAME HE REQUESTED FOR A REMAND TO THE CIT (A) STATING THAT THE ISSUES HAD BEEN DECIDED WITHOUT HEARING THE ASSESSE E. ON QUERY HE GAVE HIS ORAL UNDERTAKING STATING THAT IN CASE REMAND IS DIRECTED, HE WOULD NOT ABUSE THE OPPORTUNITY AND WOULD PARTICIPATE FULL Y AND FAIRLY BEFORE THE LD. CIT (APPEALS). ITA NO.323(ASR)/2016 ASST. YEAR 2007-08 - 4 - 6. THE LD. SENIOR DR THOUGH PLACED RELIANCE UPON THE IMP UGNED ORDER, HOWEVER, HAD NO OBJECTIONS IF THE ISSUES ARE RESTO RED BACK TO THE CIT (A) FOR ADJUDICATING ON MERITS. 7. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. I FIND THAT IN THE PECULIAR FACTS AND CIR CUMSTANCES OF THE CASE WITHOUT GETTING INTO THE QUESTION OF WHETHER TH E LD. CIT(A) WAS AVAILABLE ON THE SAID DATE OR NOT, THE IMPUGNED ORDER EVEN OTHERWISE CANNOT BE UPHELD. A PERUSAL OF THE SAME SHOWS THAT IT IS NOT AN ORDER WHICH CAN BE SAID TO BE IN CONFORMITY WITH THE STATUTORY PROVISIONS AS SET OUT IN SUB SECTION(6) OF SECTION 250 OF THE INCOME ACT, 196 1. THE AFORESAID PROVISION NOT ONLY MANDATES THAT THE COMMISSION ER(APPEALS) WHILE EXERCISING HIS APPELLATE POWERS IS REQUIRED TO PASS AN ORDER WHICH SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMIN ATION OF THE DECISION THEREON IT ALSO MANDATES THAT THE LD. CIT(A) SHALL GIVE HIS CONCLUSION BACKED BY REASONS ARRIVING AT THE CONCLUSION. T HE SAID EXERCISE IS FOUND TO BE MISSING. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE ASSESSEE PRESENT IN PERSON, THE IMPUGNED ORDER IS SET ASIDE. WHILE SO DIRECTING, IT IS MADE CLEAR THAT IT IS HO PED THAT THE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IN GOOD FAITH IS UTILIZED BY PARTICIPATING FULLY AND FAIRLY BEFORE THE CIT (A) AND IS NOT A BUSED. IN THE EVENTUALITY OF ABUSE, IT IS MADE CLEAR THAT THE LD. CIT(A) WO ULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED I N THE OPEN COURT ON THE DATE OF HEARING ITSELF. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MAY 2017 SD/- (DIVA SINGH) JUDICIAL MEMBER /GP/SR.PS/AG(CHD) COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE ACIT, 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER