Sh. Sunil Kumar Garg, Moga V. ACIT, CC-II, Chandigarh

ITA 328/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7555 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KALYAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 328/CHD/2018 (ASSESSMENT YEAR : 2008-09) SHRI SUNIL KUMAR GARG, VS. THE ACIT, HOUSE NO. 410, BAGH GALI, CENTRAL CIRCLE-II, MOGA. CHANDIGARH. PAN : AHCPG0165H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHOK GOYAL, CA REVENUE BY : SHRI D.S.KALYAN, CIT-DR DATE OF HEARING : 26.06.2018 DATE OF PRONOUNCEMENT : 17.07. 2018 ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 31.07.2017 OF CIT(A)-3, GU RGAON PERTAINING TO 2008-09 ASSESSMENT YEAR ON VARIOUS GROUNDS, HOWEVE R, PARTIES WERE HEARD ONLY IN RESPECT OF THE ISSUES AGITATED IN GROUND NO. 3 TO 5 WHICH READ AS UNDER : 3. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT IT WAS NEITHER A CASE OF FILING INACCURATE PARTICULARS OF INCOME NOR CONCEALMENT OF INCOME SINCE NO SPECIFIC CHARGE OF CONCEALME NT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME HAS BEEN MADE BY THE ASSESSIN G OFFICER. 4. NOTWITHSTANDING ABOVE SAID GROUNDS OF APPEAL, IT IS SUBMITTED THAT NO SUFFICIENT OR REASONABLE OPPORTUNITY WAS AFFORDED T O THE ASSESSEE TO REPRESENT THE CASE AND TO FILE REQUISITE SUBMISSION S. 5. THAT THE ASSESSEE SOMETIME WAS ALSO PREVENTED BY SUFFICIENT CAUSE TO REPRESENT THE CASE. (EMPHASIS SUPPLIED) 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION HAD BEEN MOVED ON BEHALF OF THE ASSESSEE. MR. ASHOK GOYAL, C.A. WAS PRESEN T AS PROXY COUNSEL. CONSIDERING THE FACT THAT THE APPEAL COULD BE DE CIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, PARTIES WERE DIRECTED TO ADVANCE THEIR ARGUMENTS. THE APPLICATION FOR ADJOURNMENT ACCORDINGLY W AS WITHDRAWN. MR. GOYAL INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITT ED THAT THE ASSESSEE COULD NOT PARTICIPATE AS NOTICE FOR THE SPECIFIC DATE OF HEARING WAS NOT RECEIVED. THE RECORD SHOWS THAT THE CASE WAS FIXE D FOR HEARING ON ITA 328/CHD/2018 A.Y.2008-09 PAGE 2 OF 2 23.06.2015, 14.09.2015 AND 18.07.2017 AND THE ASSESSEE REM AINED UNREPRESENTED. IT IS SEEN THAT THE PARTICULARS AVAILABLE WITH THE CIT(A) FOR COMMUNICATION EVIDENT FROM COLUMN NO. 5 OF THE ORDER ARE D IFFERENT FROM THE NEW ADDRESS BROUGHT ON RECORD IN THE APPEAL FILED BE FORE THE ITAT. THE ADDRESS AVAILABLE WITH THE CIT(A) IS AS UNDER : OLD ADDRESS : SHRI SUNIL KUMAR GARG, HOSUE NO. 410, BAGH GALI, MOGA. THE ADDRESS MADE AVAILABLE TO ITAT IS NEW ADDRESS : HOUSE NO. 915/13, BACKSIDE GEETA BHAWAN, PARWANA NAGAR, STREET NO. 1A, MAIN ROAD, MOGA-142001. 3. ACCORDINGLY, TAKING NOTE OF THE FACT THAT THE LD. AR WA S UNABLE TO ADDRESS WHETHER THE ASSESSEE HAD PLACED CORRECT (NEW) ADDRESS ON RECORD BEFORE THE CIT(A), THE FACT THAT EFFECTIVE OPPORTUNITY TO P UT ACROSS THE CORRECT AND COMPLETE FACTS ADMITTEDLY WAS NOT AVAILABLE T O THE ASSESSEE. IN THE CIRCUMSTANCES NOTING THAT THE DEPARTMENT HAS NO O BJECTION TO THE PRAYER FOR REMAND IN ORDER TO PROVIDE AN OPPORTUNITY O F BEING HEARD, THE SAID PRAYER WAS ACCEPTED RECORDING THE ORAL UNDERTAKING GIVEN BY MR. GOYAL THAT THE ASSESSEE SHALL PARTICIPATE FULLY AND FAIRLY. THE IM PUGNED ORDER IS, ACCORDINGLY, SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION T O PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WHILE SO DIRECTING, IT IS MADE CLEAR THAT IN THE EVENTUALITY THE ASSESSEE ABUSES THE TRUST REPOSED AND FAILS TO PARTICIPATE FULLY AND FAIRLY BEFORE THE CIT(A), THE CIT(A) WOULD BE AT LIBERTY TO PASS THE ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RE CORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.07. 2018. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SING H) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.