Smt. Rupinder Kaur Gill, Ludhiana V. ITO, W-6(2), Ludhiana

ITA 325/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0007 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDARSHAN JCIT DR
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' '# $, % &' BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M ITA NO. 324 & 325/CHD/2019 ASSESSMENT YEAR : 2010-11 SMT. RUPINDER KAUR GILL C/O M/S R.K. KAPOOR AND CO. B-XIX- 770, KAPOOR VILLA PATEL NAGAR, CIVIL LINES, LUDHIANA ITO WARD-6(2), LUDHIANA PAN NO: ATVPG6164B APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE #!' REVENUE BY : SHRI ARVIND SUDARSHAN, JCIT DR $ %! & DATE OF HEARING : 18/06/2020 '()*! & DATE OF PRONOUNCEMENT : 18/06/2020 &(/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE ARE THE APPEALS BY THE ASSESSEE AGAINST THE S EPARATE ORDERS DT. 21/12/2018 AND 20/12/2018 PASSED BY THE LD. CIT(A) ON THE QUANTUM ADDITION AND THE PENALTY UNDER SECTION 271(1)(C) OF THE INCO ME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) RESPECTIVELY. 2. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE IMPUGNED ORDERS HAVE BEEN PA SSED BY THE LD. CIT(A) EXPARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE WHO IS NRI. IT WAS FURTHER SUBMITTED T HAT THE A.O. ALSO PASSED THE ASSESSMENT ORDER UNDER SECTION 147 R.W.S 144 OF THE ACT EXPARTE. IT WAS FURTHER SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE NOT CONSIDERED THE DOCUMENTS AND THE DETAILS FURNISHED BY THE ASSESSEE AND EVEN NO DISCREPANCY WHATSOEVER IN THE DOCUMENTS / EVIDENCE FURNISHED BY THE ASSESS EE WAS POINTED OUT. HE REQUESTED TO RESTORE THIS CASE BACK TO THE FILE OF THE A.O. TO BE DECIDED AFTER 2 CONSIDERING THE SUBMISSIONS AS WELL AS THE DOCUMENT S FILED BY THE ASSESSEE RELATING TO INVESTMENT AMOUNTING TO RS. 15 LACS IN SBI MUTUAL FUNDS, LUDHIANA. 3. IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFOR ESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE A.O. AS WELL AS THE LD. CIT(A) PASSED THEIR RES PECTIVE ORDERS EXPARTE. THE A.O. MENTIONED IN HIS ORDER THAT THE NOTICE WAS SER VED UPON THE ASSESSEE THROUGH AFFIXTURE BY THE INSPECTOR IN THE PRESENCE OF THE NOTICE SERVER OF HIS OFFICE. FROM THE ABOVE FACTS IT CAN BE SAID THAT TH E SERVICE IF ANY THROUGH AFFIXTURE BY THE INSPECTOR IN THE PRESENCE OF NOTIC E SERVER OF THE DEPARTMENT WAS THERE, THAT WAS NOT A PROPER SERVICE BECAUSE TH E AFFIXTURE WAS NOT IN THE PRESENCE OF INDEPENDENT WITNESS. 4.1 LD. CIT(A) ALSO PASSED THE IMPUGNED ORDERS EXPA RTE BUT IT IS NOT CLEAR AS TO WHETHER THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE BECAUSE THE LD. CIT(A) MENTIONED IN THE IMPUGNED ORDER THAT THE CAS E WAS ADJOURNED TO 20/12/2018 ON 11/12/2018 ON THE REQUEST. HOWEVER IT IS NOT BROUGHT ON RECORD AS TO WHETHER THE SAID NOTICE WAS SERVED UPON THE ASSE SSEE. IT IS ALSO NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL RELATING TO PENAL TY UNDER SECTION 271(1)(C) OF THE ACT, EXPARTE ON 20/12/2018 WHILE THE APPEAL ON QUANTUM ADDITION WHICH WAS THE BASIS FOR LEVYING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS DECIDED VIDE ORDER DT. 21/12/2018 I.E; ON A SUBSEQU ENT DATE. IN OUR VIEW THAT ACTION OF THE LD. CIT(A) WAS NOT JUSTIFIED BECAUSE THE CIT(A) DECIDED THE APPEAL OF THE ASSESSEE ON PENALTY BEFORE DECIDING THE APPE AL ON QUANTUM. 5. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMN ED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . 3 WE THEREFORE BY KEEPING IN VIEW THE FACT OF THE PRE SENT CASE DEEM IT APPROPRIATE TO SET ASIDE BOTH THESE CASES BACK TO T HE FILE OF THE A.O. TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED ON 18/06/2020 ) SD/- SD/- '# $ .., (SANJAY GARG ) ( N.K. SAI NI) % &'/ JUDICIAL MEMBER / VICE PRESIDENT AG DATE: 18/06/2020 (+! ,-.- 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