Smt. Jasleen Kaur, Patiala V. ITO, W-1, Patiala

ITA 362/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1218 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NOS. 362 & 363/CHD/2018 (ASSESSMENT YEARS: 2013-14 & 2014-15) SMT. JASLEEN KAUR VS. THE ITO THROUGH GPA JAI DEV SINGH WARD-1, PATIALA PROP. M/S WINI GAS AGENCY MANMOHAN COTTAGE, NEAR DHILLON COLONY, PATIALA PAN NO. ACJPJ2836J (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ASHOK GOYAL REVENUE BY : SHRI MANOJ KUMAR DATE OF HEARING : 18/06/2018 DATE OF PRONOUNCEMENT : 04.09.2018 ORDER PER DIVA SINGH BOTH THE APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE SEPARATE ORDERS DATED 01.01.2010 AN D 03.01.2010 OF CIT(A)-3 LUDHIANA PERTAINING TO 2013-14 AND 2014-15 ASS ESSMENT YEAR AND ARE BEING DECIDED BY WAY OF COMMON ORDER FOR THE SA KE OF CONVENIENCE. 2. ADDRESSING ITA/362/CHD/ 2018, THE LD. AR SUBMITTED THAT GROUND NO. 1 AND 2 IN THE PRESENT APPEAL IS IDENTICAL IN IT A 363/CHD/2018 AND THE ARGUMENTS WOULD REMAIN IDENTICAL. R EFERRING TO THE IMPUGNED ORDERS, IT WAS HIS SUBMISSION THAT THE ORDE RS HAVE BEEN PASSED BY THE LD. CIT(A)WITHOUT ADDRESSING THE LEGAL POSIT ION. ACCORDINGLY IT WAS HIS LIMITED PRAYER THAT THE ORDERS MAY BE SET ASIDE FOR ADDRESSING THE CORRECT FACTS AND LAW. 3. THE LD. DR ON GOING THROUGH THE RESPECTIVE FINDINGS OF THE LD. CIT(A) WHICH ARE IDENTICAL IN BOTH THE APPEALS STATED THAT HE HAD NO OBJECTION TO THE SAID PRAYER. 4. I HAVE HEARD THE SUBMISSION AND PERUSED THE MATERIA L AVAILABLE ON RECORD. GROUND NO. 1 & 2 OF THE ASSESSEE IN THE PRESENT APPEALS, IT IS ITA-362&363/CHD/2018 A.Y. 2013-14 & 2014-15 2 NOTICED ARE IDENTICAL IN BOTH THE APPEALS. FOR THE SAKE OF CONVENIENCE, THE GROUNDS FROM ITA 362/CHD/2018 ARE REPRODUCED: 1. THAT LD. CIT(A) HAS ERRED IN CONFIRMING THAT THE NOTICE ISSUED UNDER SECTION 148 OF THE ITA ACT IS VALID ON THE REASONS RECORDED WHEN THE SAME ARE NOT AS PER LAW. HENCE RELIEF BE ALLOWED. 2. THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ASSE SSMENT WITHOUT DISPOSING OF THE OBJECTIONS FILED AGAINST REASONS R ECORDED. THE ASSESSMENT IS LIABLE TO BE DECLARED NULL & VOID. 3. THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION OF RS. 2,95,150/-ON ACCOUNT OF INSPECTION CHARGES WHEN THERE IS NO EVID ENCE THAT THE SAME WAS CARRIED OUT. OTHERWISE ALSO NO EXPENDITURE HAS BEEN ALLOWED. HENCE RELIEF BE ALLOWED. 4.1. ON A PERUSAL OF THE RECORD, IT IS EVIDENT THAT THE ASS ESSEE HAS CHALLENGED THE RE-OPENING ON MANY GROUNDS INCLUDING THE G ROUND THAT THE NOTICE ISSUED WAS ILLEGAL AS IT WAS WITHOUT APPROVAL OF THE COMPETENT AUTHORITY. WRITTEN SUBMISSIONS OF THE ASSESSEE HAVE BEEN EXTRACTED IN PAGES 2 TO 10 OF THE IMPUGNED ORDER.THE CIT(A) ON FACT S, IT IS SEEN DISMISSED THE ARGUMENT HOLDING AS UNDER : 3.3 I HAVE CAREFULLY CONSIDERED RIVAL SUBMISSION. ON THE ISSUE OF LEGALITY OF NOTICE U/S 148,1 HAVE GONE THROUGH THE SUBMISSION O F THE APPELLANT IN DETAIL AND THE CASE LAWS RELIED UPON/FT IS SEEN THAT THE A PPELLANT HAS CHALLENGED THE VALIDITY OF NOTICE U/S 148, AS /THE SAME HAS BE EN ISSUED WITHOUT APPROPRIATE APPROVAL FROM THE COMPETENT AUTHORITY. HOWEVER FROM THE PERUSAL OF THE WRITTEN SUBMISSION, IT IS SEEN THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE IN THIS REGARD, AS THE APPELLANT HAS NOT G ONE* FOR THE INSPECTION OF THE FILE AND WITH EVIDENCE SHE HAS NOT BEEN ABLE TO CORBORATE THE ALLEGATIONS. (EMPHASIS PROVIDED) 5. ON A CONSIDERATION OF THE ISSUES, I AM OF THE VIEW THAT THE ABOVE REASONING OF THE CIT(A) IN DISMISSING ASSESSEE'S OBJECTIONS CANNOT BE ACCEPTED. WHEN A CHALLENGE IS POSED BY THE TAX PAYER T HAT THE NOTICE IS WITHOUT APPROVAL OF THE COMPETENT AUTHORITY IN TERMS OF T HE STATUTORY MANDATE, THEN THE ADJUDICATING AUTHORITY IN THE EXERCISE OF THE POWERS FAIRLY AND IMPARTIALLY IS REQUIRED TO CALL FOR THE RECORD AN D SEE WHETHER THE CHALLENGE ON FACTS IS CORRECT OR NOT. IT GOES WITHO UT SAYING THAT IN CASE THE ADJUDICATING AUTHORITY ON FACTS INTENDS TAKING A N ADVERSE VIEW, THEN IT BECOMES INCUMBENT ON THE AUTHORITY TO CONFRONT THE CONTRARY FACT/EVIDENCE TO THE TAXPAYER AND AFTER REFERRING TO THE FACTS IN THE ORDER, PASS AN ORDER IN ACCORDANCE WITH LAW. FAULTING THE ASSESSEE FOR NOT FILING THE EVIDENCES QUA THE STATUTORY PROCEDURE INTERNALLY FO LLOWED BY THE AO TANTAMOUNTS TO PLACING UNNECESSARY OBSTACLES FOR JUSTICE DISPENSATION REQUIRING THE TAXPAYER TO MOVE FOR INSPECTION OF RECORD A ND/OR SEEK INFORMATION INVOKING RIGHT TO INFORMATION ETC. FOR SEEKING INFOR MATION ITA-362&363/CHD/2018 A.Y. 2013-14 & 2014-15 3 WHICH ANY WAY WAS REQUIRED TO BE CONFRONTED TO THE ASS ESSEE. IT IS NOBODYS CASE THAT RE-OPENING WITHOUT FOLLOWING THE STATU TORY MANDATE IS PERMISSIBLE. ONCE A CHALLENGE IS POSED THAT NECESSARY APP ROVAL IN TERMS OF THE STATUTORY MANDATE IS NOT ON RECORD, THE ADJUDICA TING AUTHORITY IS REQUIRED TO LOOK INTO THE RECORD AND PASS AN ORDER AFTE R FOLLOWING THE DUE PROCEDURES AND ADDRESS THE GRIEVANCE IN ACCORDANCE WIT H LAW. THE CIT(A) IS NOT EXPECTED TO PLACE UNNECESSARY OBSTACLES AN D BURDEN ON THE TAXPAYER BY INSISTING THAT INTERNAL RECORDS OF THE TAX AU THORITIES BE FIRST INSPECTED. SAID ACTION CANNOT BE CONDONED AND SUCH ABDIC ATION OF RESPONSIBILITY IS NOT EXPECTED FROM THE CIT(A) IN THE DISCHAR GE OF HIS DUTIES I.E. U/S 250 OF THE ACT. ACCORDINGLY IN TERMS OF T HE PRAYER OF THE PARTIES BEFORE THE BENCH THE IMPUGNED ORDER IS SET ASIDE IN TOTO AND THE ISSUES ARE REMANDED BACK TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO FIRST DECIDE THE ASSUMPTION OF JURISDICTION AND OTHER LEGAL ISSUES AND THEREAFTER TO PROCEED TO DECIDE THE ISSUE ON MERITS IF S O WARRANTED. THE IMPUGNED ORDER ACCORDINGLY ARE SET ASIDE BACK TO THE FILE OF LD. CIT(A) WITH THE ABOVE DIRECTIONS. 6. THE ASSESSEE IS DIRECTED TO ENSURE FULL AND PROPER PA RTICIPATION. THE SAID ORDER IS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.09.2018. SD/- (DIVA SINGH) JUDICIAL MEMBER AG/POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, THE CIT(A), THE D R ASSTT. REGISTRAR ITAT, CHANDIGARH