Sh. Surinder Singh, Mohali V. ITO, W-6(2), Mohali

ITA 369/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4124 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay; Set aside
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.369/CHD/2018 ASSESSMENT YEAR: 2010-11 SHRI SURINDER SINGH VS. THE ITO C/O PARIKSHIT AGGARWAL W-6(2) CA, H.NO. 1238, SECTOR-22-B MOHALI, PUNJAB CHANDIGARH PAN NO. AEWPS5317J (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AMAN PARTI, CA FOR SH. PARIKSHIT AGGARWAL, CA REVENUE BY : SHRI. MANJIT SINGH, SR. DR DATE OF HEARING : 13/03/2019 DATE OF PRONOUNCEMENT : 13/03/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 29/09/2016 OF LD. CIT(A)-II, GURGAON. 2. THE REGISTRY HAS POINTED OUT THAT THERE IS A DEL AY OF 419 DAYS IN FILING THE APPEAL. THE ASSESSEE FILED AN APPLICATION DT. 13/06/2018 FO R CONDONATION OF DELAY STATING THEREIN AS UNDER: THE APPELLANT ABOVE CITED FILED APPEAL BEFORE THE H ON'BLE BENCH. THE REGISTRY HAS POINTED OUT DELAY OF 419 DAYS IN FILING OF THIS APPEAL. IN THIS REGARD, IT IS SUBMITTED THAT THE APPELLATE ORDER WAS NEVER SERVED ON THE ASSESSEE. IT WAS AT THE TIME OF HEARING IN THE PENALTY PROCEEDINGS THAT THE ASSESSEE CAME TO KNOW ABOUT THE FACT OF PASSING OF THE APPELLATE ORDER. T HEREAFTER, A COPY OF THE APPELLATE ORDER WAS REQUESTED FROM LD. AO AND THE C OUNSEL OF THE ASSESSEE INITIATED THE PROCESS OF FILING OF APPEAL BEFORE TH E HON'BLE ITAT. FURTHER, THERE WAS A CLERICAL ERROR AT THE TIME OF SUBMITTING FORM 36. THE DATE OF COMMUNICATION OF ORDER WAS MISTAKENLY WRITTEN AS 29.11.2016 AS FROM THE ABOVE MENTIONED FACTS IT IS CLEAR THAT THE ORDER WAS NOT SERVED ON ASSESSEE TIL L 15.03.2018. THEREFORE, THE ASSESSEE IS SUBMITTING REVISED FORM 36. COPIES OF T HE FORM 36 ARE ATTACHED HEREWITH. IT IS PRAYED THAT THE SAME MAY PLEASE BE 'TAKEN ON RECORD AND OBLIGE. FURTHER, A DULY SWORN AND ATTESTED AFFIDAVIT OF THE ASSESSEE EXPLAINING THE ABOVE FACTS AND ALSO THE REASON FOR PASSING OF EX-PARTE O RDER BY WORTHY CIT(A) IS ATTACHED. THE SAME ALSO PLEASE BE TAKEN ON RECORD. I SHALL BE HIGHLY OBLIGED. 2.1 IN SUPPORT OF THE ABOVE APPLICATION THE ASSESSE E ALSO FILED AN AFFIDAVIT STATING THEREIN AS UNDER: I, SURINDER SINGH, S/O SH. SWARN SINGH RESIDENT OF C/O MAHINDRA & MAHINDRA LTD, SWARAJ DIVISION, PHASE 4, INDUSTRIAL AREA, MOHALI D O HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: 1. THAT I AM PERMANENT RESIDENT OF C/O MAHINDRA & MAHI NDRA LTD, SWARAJ DIVISION, PHASE 4, INDUSTRIAL AREA, MOHALI AND MY P AN IS AEWPS53 17J 2 2. THAT I FILED APPEAL AGAINST ORDER OF LD. AO BEFORE THE WORTHY CIT(A) - II, CHANDIGARH WHICH WAS LATER ON TRANSFERRED TO WORTHY CIT(A), GURGAON WITHOUT ANY INTIMATION TO ME. 3. THAT THE ABOVE SAID APPEAL WAS DISMISSED EX-PARTE I N APPEAL NO. 373/2012-13 DTD. 29.09.2016 ON THE GROUND THAT NOBODY APPEARED IN RESPONSE TO 2 NOTICES OF HEARING DTD. 12.07.2016, & 19/08/2016. 4. THAT THE CORRECT FACTS ARE THAT THE ABOVE NOTICES WERE NEVER SERVED ON ME AND THEREFORE, THERE WAS REASONABLE CAUSE FOR NON-A PPEARANCE IN HEARING OF APPEAL BEFORE THE WORTHY CIT(A). 5. THAT IT IS NOT THAT I WAS NOT INTERESTED IN PROSECU TING THE APPEAL BEFORE THE WORTHY CIT(A). 6. THAT THE ABOVE SAID ORDER OF WORTHY CIT(A) DTD. 29. 09.2016 WAS NEVER SERVED ON ME. 7. THAT IT WAS AT THE TIME OF HEARING IN THE PENALT Y PROCEEDINGS THAT I CAME TO KNOW ABOUT THE FACT OF PASSING OF THE APPELLATE ORDER. THEREAFTER, A COPY OF THE APPELLATE ORDER WAS REQUESTED FROM LD. AO AND M Y COUNSEL INITIATED THE PROCESS OF FILING OF APPEAL BEFORE THE HON'BLE ITAT . 8. THAT TILL 15.03.2018, IT WAS NOT IN MY KNOWLEDGE TH AT THE APPELLATE ORDER HAS BEEN PASSED BY HON'BLE CIT(A)-2, GURGAON. 9. THAT MY COUNSEL FILED FORM 36 ON 23.03.2018 BEFORE THE HON'BLE ITAT BUT DUE TO A CLERICAL ERROR, THE DATE OF COMMUNICATION OF ORDE R WAS MISTAKENLY WRITTEN AS 29.11.2016 INSTEAD OF 15.03.2018. 10. THAT I AM NOW FILING A REVISED FORM 36 IN THIS REGA RD. 11. THAT THIS WAS A GENUINE, BONAFIDE AND UNINTENTIONAL REASON FOR NON- APPEARANCE BEFORE THE HON'BLE CIT(A). 12. THAT IN VIEW OF ABOVE FACTS, THE REVISED FORM 36 BE FORE THE HON'BLE ITAT MAY PLEASE BE ACCEPTED AND FURTHER THE APPELLATE ORDER PASSED BY WORTHY CIT(A) DESERVES TO BE SET ASIDE. I UNDERTAKE TO CO-OPERATE IN EARLY DISPOSAL OF THIS APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE DURING THE COUR SE OF HEARING REITERATED THE AFORESAID CONTENTS OF THE AFFIDAVIT AND THE APPLICA TION AND REQUESTED TO CONDONE THE DELAY. 4. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR OPPOSED THE CONDONATION OF DELAY AND SUBMITTED THAT NOTICES FOR HEARING WERE ISSUED TO T HE ASSESSEE BY THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE THE IMPUGNED ORDER WA S PASSED EX-PARTE AND IT WAS DISPATCHED ON 03/10/2016 AT THE ADDRESS OF THE ASSE SSEE WHICH WAS NOT RECEIVED BACK, SO, IT WAS PRESUMED THAT THE ASSESSEE RECEIVED THE ORDER IN TIME. 5. I HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, NOTHING IS AVAILABLE ON RECORD TO SUBSTANTIATE THAT THE IMPUGNED ORDER WAS RECEIVED B Y THE ASSESSEE BEFORE 15/03/2018, THEREFORE THE DELAY, IF ANY, IN FILING THE APPEAL I S CONDONED AND THE APPEAL IS ADMITTED. 6. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L : 3 1. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) IN APPEAL NO. 373/2012-13 DATED 29.09.2016 H AS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISIONS OF SECTION 250(6 ) OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS, CIRCUMSTANCES OF THE CASE AND IN LAW, THE WORTHY CIT(A) HAS ERRED IN PASSING THE IMPUGNED APPELLATE ORDER EX-PA RTE EVEN WHEN THE RELEVANT NOTICES FOR HEARING WERE NOT SERVED ON THE APPELLAN T AND THE APPELLANT WAS NOT PROVIDED WITH REASONABLE OPPORTUNITY OF BEING HEARD AND THEREFORE THE SAID IMPUGNED ORDER DESERVES TO BE SET-ASIDE. 3. THAT ON FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN UPHOLDING THE IMPUGNED ASSESSMENT WHIC H THE LD. AO HAD FRAMED IN HASTE AND WITHOUT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT AND THEREFORE THE IMPUGNED ASSESSMENT FRAMED IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND HENCE DESERVES TO BE QUASHED. 4. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE IMPUGNED ACTION OF LD. AO WHEREIN HE HAS ERRED IN MAKING ADHOC ADDITION OF RS. 7,30,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. 5. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) WAS UNJUSTIFIED IN CONFIRMING THE ACTION OF LD. AO WHEREIN HE HAS ERRED IN MAKING ADDITION OF RS. 2,01,226/- ON ACCOUNT OF CAP ITAL GAIN EVEN WHEN THE RELEVANT TRANSACTION WAS NOT TAXABLE AND EVEN THE F IGURE HAS BEEN WRONGLY COMPUTED. 6. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION, D ELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE SAME. 7. VIDE GROUND NO. 2 THE MAIN GRIEVANCE OF THE ASSE SSEE RELATES TO THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 01/07/2010 DECLARING TAXABLE INCOME OF RS. 2,25,278 /- WHICH WAS PROCESSED UNDER SECTION 143(1) LATER ON THE CASE WAS SELECTED FOR S CRUTINY AND THE ASSESSING OFFICER NOTICED THAT AS PER THE AIR INFORMATION RECEIVED, T HE ASSESSEE HAD DEPOSITED CASH OF RS. 16,50,000/- IN HIS SAVING BANKS ACCOUNT DURING THE YEAR. HE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE. AFTER CONSIDERING THE EXPLANATI ON OF THE ASSESSEE THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT ASSESSEE COULD NOT EXPLAIN THE DEPOSITS OF RS. 7,30,000/- HE MADE THE ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE. ASSESSING OFFICER ALSO MADE THE ADDITION OF RS. 2,0 1,226/- ON ACCOUNT OF CAPITAL GAIN. 9. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY PASSING THE EX-PARTE ORDER AND SUSTAINED THE ADITION MADE BY THE ASSESSING OFFICER. 10. NOW THE ASSESSEE IS IN APPEAL. 11. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NOTICE FOR HEARING WAS NOT SERVED UPON THE ASSESSEE WHICH IS EVIDENT FROM THE OBSERVA TION OF THE LD. CIT(A) WHO MENTIONED THAT THE NOTICE DT. 19/08/2016 WAS ISSUED , THE ASSESSEE LEFT THE PREMISES. IT 4 WAS STATED THAT THE ASSESSEE INFORMED THE CHANGE IN ADDRESS FOR CORRESPONDENCE IN FORM NO. 35 AT THE TIME OF FILING THE APPEAL BEFORE THE LD. CIT(A). THEREFORE, LD. CIT(A) WAS NOT JUSTIFIED IN PASSING THE IMPUGNED ORDER EX- PARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 12. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR STRONGL Y SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AS SESSEE DID NOT COOPERATE AND ATTENDED THE PROCEEDINGS BEFORE THE LD. CIT(A), SO, THERE WAS NO ALTERNATIVE EXCEPT TO DECIDE THE APPEAL EX-PARTE AND AS THE ASSESSING OFF ICER HAD GIVEN THE REASONS WHILE MAKING THE ADDITIONS, THE LD. CIT(A) WAS FULLY JUS TIFIED IN CONFIRMING THE SAME. 13. I HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE IT IS NOTI CED THAT THE LD. CIT(A) SIMPLY STATED THAT NOTICE FOR HEARING WAS ISSUED ON 19/08/2016 TO THE ASSESSEE BUT NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE, PARTICULARLY WHEN THE LD. CIT(A) HIMSELF MENTIONED IN THE IMPUGNED ORDER THAT THE ASSESSEE LEFT. ON THE CONTRARY THE CLAIM OF THE ASS ESSEE IS THAT THE CHANGE IN ADDRESS WAS INTIMATED TO THE LD. CIT(A) IN FORM NO. 35 ITSE LF AND TWO ALTERNATE ADDRESSES WERE GIVEN BUT NO NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE ON THE SAID ADDRESSES. I, THEREFORE CONSIDERING THE TOTALITY OF THE FACTS, DE EM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD.CIT(A) TO BE DECIDED AFR ESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 14. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 13/03/2019. ) SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 13/03/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR