Tajmeet Kaur, New Delhi V. ITO, Chandigarh

ITA 371/CHANDI/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2543 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NOS. 371 & 372/CHD/2015 ASSESSMENT YEAR : 2010-11 MS. TAJMEET KAUR, VS. THE ITO, NEW DELHI WARD 3(4) CHANDIGARH PAN NO. AAIPK0521E (APPELLANT) (RESPONDENT) APPELLANT BY : SH HARRY RIKHY RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 21.01.2016 DATE OF PRONOUNCEMENT : 22. 01.2016 . ORDER PER H.L.KARWA, VP BOTH THE APPEALS CONCERN THE SAME ASSESSEE WERE HEA RD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE. 2. FIRSTLY, WE WILL TAKE UP ITA NO. 371/CHD/2015. I N THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X (APPEALS), CHANDIGARH IS DEFECTIVE BOTH IN LAW AND FACTS OF THE CASE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH IS NOT JUSTIFIED IN DISMISSING THE APPEA L OF THE 2 APPELLANT WITHOUT GIVING A PROPER ARID REASONABLE OPPORTUNITY OF BEING HEARD AND IGNORING THE STATEME NT OF FACTS AND GROUNDS OF APPEAL, WHICH IS AGAINST THE P RINCIPAL OF EQUITY AND NATURAL JUSTICE. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS). CHANDIGARH IS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER WHICH IS VOID AB-INITIO BEING PASSED WITHOUT SERVING ANY NOTICE AND WITHOUT HAVING JURIS DICTION OVER THE APPELLANT AS THE APPELLANT RESIDES IN DELH I AND HAS E-FILED HER ORIGINAL INCOME TAX RETURN ON 31-07-201 0 VIDE ACKNOWLEDGEMENT NO. 14409143031710 IN DELHI. HENCE, THE ASSESSMENT ORDER PASSED IS NULL AND VOID. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ). CHANDIGARH IS NOT JUSTIFIED IN UPHOLDING THE ADDITI ON OF RS.22,15,308/- MADE BY THE LD. ASSESSING OFFICER AS THE APPELLANT HAS ALREADY DISCLOSED THE SAID INCOME IN HER ORIGINAL INCOME TAX RETURN FILED ON 31-07-2010 IN D ELHI. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DE LETED AS IT LEADS TO DOUBLE TAXATION. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ). CHANDIGARH IS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER AS THE APPELLANT HAS NEVER FI LED ANY REVISED INCOME TAX RETURN DECLARING INCOME OF RS.1,56.500/- ON 25-01-2012 IN CHANDIGARH AS THE APPELLANT IS RESIDING AND ASSESSED IN DELHI SINCE L ONG. 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ), CHANDIGARH IS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER AS THE APPELLANT HAS NOT BEEN GIVEN THE BENEFIT OF PRE-PAID TAXES OF RS,4,68,117/- DULY REFLECTING IN HER FORM 26AS DURING THE ASSESSMENT PROCEEDINGS. 3 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SSESSEE IS AN INDIVIDUAL AND ASSESSMENT YEAR INVOLVED IS 2010-11. THE ASSESSEE FILED HER RETURN OF INCOME ON 31.7.2010 DECLARING RS. 1,60,800/- ON ACCOUNT OF SA LARY, RS. 15,50,716/- BEING INCOME FROM HOUSE PROPERTY AND RS. 44,316/- ON ACCO UNT OF BUSINESS INCOME THUS TOTALING AN INCOME OF RS. 18,06,940/ ON WHICH TAX PAYABLE HAD BEEN WORKED OUT AT RS. 4,68,117/- INCLUSIVE OF VARIOUS INTERES TS. AFTER CLAIMING AN AMOUNT OF RS. 3,03,784/- ON ACCOUNT OF TDS, BALANCE TAX OF RS. 1,64,340/- WAS PAID U/S 140A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT '). IN RETURN SO FILED ELECTRONICALLY, PAN NO. WAS SHOWN AS AAIPK0521E. A S REGARDS THE REASONS FOR SCRUTINY SELECTION THE ASSESSING OFFICER NOTED THAT THE DETAILS OF THE CASE SHOWED THAT THE ASSESSEE RETURNED INCOME AT 1,56,500/- AS PER RETURN FILED ON25.1.2012 VIDE ACKNOWLEDGMENT NO. 44924430407678 WITH WARD 3( 4), CHANDIGARH IN PLACE OF RETURN ORIGINALLY FILED WHICH SHOWED INCOME AT R S. 18,06,940/-. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE 26AS D RAWN ON 11.10.2012 SHOWED AMOUNTS CREDITED TO ASSESSEES ACCOUNT WORTH RS. 23 ,43,168/- ON WHICH TDS AMOUNTED TO RS. 3,04,456/- CLAIMED IN RESPECT OF W HICH WAS MADE ORIGINALLY. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 22,1 5,308/- BEING THE DIFFERENCE IN THE AMOUNT OF RS. 23,43,168/- CREDITED TO ASSESS EES ACCOUNT AS PER 26AS MINUS RECEIPTS SHOWN IN THE ORIGINAL RETURN AT RS. 1,27,860/- FOR THE REASONS STATED IN PARA 2.3 OF THE ASSESSMENT ORDER. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CONTENTION OF THE ASSESSEE WAS THAT SHE HAD RECEIVED THE PENALTY ORDER AND THEREAFTER APPRO ACHED THE ASSESSING OFFICER AND FOUND THAT AN EX-PARTE ASSESSMENT HAD BEEN COMP LETED BY THE ASSESSING OFFICER. THE ASSESSEE APPLIED FOR THE COPY OF THE A SSESSMENT ORDER AND OBTAINED THE SAME FROM THE ASSESSING OFFICER PERSONALLY ON 1 7.7.2013. BESIDES ABOVE, THE ASSESSEE ALSO CONTENDED BEFORE THE CIT(A) THAT THE ASSESSING OFFICER HAD 4 WRONGLY STATED IN THE ORDER PASSED U/S 144 OF THE A CT THAT THE ASSESSEE HAD REVISED HER TAX RETURN AND REDUCED HER INCOME; WHER EAS THE ASSESSEE HAD NOT REVISED HER INCOME TAX RETURN AND PAID ALL THE TAXE S DUE AS PER LAW.. IT WAS ALSO STATED THAT THE ASSESSEE HAD BEEN FILING HER TAX RE TURN IN DELHI AND HER JURISDICTION ALSO FALLS IN DELHI AND THE ASSESSING OFFICER HAD PASSED THE ORDER FROM CHANDIGARH OFFICE AND HE HAD NO JURISDICTION T O PASS SUCH A ORDER AND, HENCE, THE SAME WAS INVALID. 5. THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSES SEE, OBSERVING AS UNDER:- 2. THE ASSESSMENT ORDER IN THIS CASE IS DATED 17.12.2012. THE APPELLANT HAS CLAIMED IN FORM NO. 3 5 THAT THE NOTICE OF DEMAND WAS SERVED ON 17.07.2013, WHER EAS AS PER ITNS-51 RECEIVED FROM THE ASSESSING OFFICER, TH E NOTICE OF DEMAND WAS SERVED ON 20.12.2012. 3. AS THE APPELLANT HAS NOT EXPLAINED THE BASIS ON WHICH SHE HAS CLAIMED THAT THE RELEVANT NOTICE OF DEMAND WAS SERVED ON 17.07.2013 AND SO HER CLAIM IN THIS REGAR D IS REJECTED. 4. AS THE DEMAND NOTICE WAS SERVED ON 24.12.2 012, THE APPEAL SHOULD HAVE BEEN FILED BY 23.01.2013, WHEREA S IT HAS BEEN FILED ON 13.09.2013, WHICH IS LATE BY MORE THAN SEVEN MONTHS. THE APPELLANT HAS NOT FILED ANY APPLI CATION FOR CONDONATION OF DELAY IN FILING THE PRESENT APPE AL AND HAS NOT ATTENDED THE APPELLATE PROCEEDINGS ALSO TO EXPLAIN THE DELAY. THEREFORE, THE APPEAL FILED BY THE APPEL LANT IS DISMISSED IN-LIMINE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FROM T HE ORDER OF THE CIT(A), IT IS CLEAR THAT THE LD. CIT(A) HAS DISMISSED THE A PPEAL OF THE ASSESSEE IN-LIMINE OBSERVING THAT THERE WAS A DELAY OF MORE THAN SEVEN MONTHS IN FILING THE APPEAL AND THE ASSESSEE HAD NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY IN FILING 5 THE APPEAL BEFORE HIM. SHRI HARRY RIKHY, LD. COUNS EL FOR THE ASSESSEE STATED THAT THE ASSESSEE VIDE HER LETTER DATED 14.10.2014 SUBMITTED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) WHEREIN SHE HAD GIVEN REASONS FOR THE DELAY, IF ANY, FOR FILING THE APPEAL BEFORE THE CIT(A). IN THIS REGARD , SHRI HARRY RIKY LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO PARA 4 OF THE WRITTEN SUBMISSIONS, WHICH READS AS UNDER:- 4. THE LD. ASSESSING OFFICER HAD MENTIONED IN HIS ORDER THAT THE NOTICE HAD BEEN SENT BUT HOWEVER THE APPEL LANT HAD NOT RECEIVED ANY NOTICE BEFORE PASSING OF HIS ORDER U/S 144 OF THE INCOME-TAX ACT, 1961. ANY ORDER PASSED WITHO UT SERVICE OF NOTICE IS NULL AND VOID AS IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS HELD IN VARIOUS JUD ICIAL PRONOUNCEMENTS. THE APPELLANT HAD RECEIVED THE ORDE R OF PENALTY AND THEN APPROACHED THE LD. ASSESSING OFFIC ER AND CAME TO KNOW ABOUT PASSING OF ORDER U/S 144 OF THE INCOME TAX ACT. 7. ON A PERUSAL OF THE IMPUGNED ORDER, WE OBSERVE T HAT THE LD. CIT(A) HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS DATED 14.10. 2014 AND ALSO THE REASONS GIVEN IN PARA 4 BY THE ASSESSEE FOR THE DELAY IN FI LING THE APPEAL BEFORE HIM. IN OUR OPINION, THE ACTION OF THE CIT(A) IS AGAINST TH E WELL SETTLED PRINCIPLES OF LAW AND THE SAME CANNOT THE ACCEPTED UNDER THE LAW. NO OPPORTUNITY WAS GIVEN BY THE CIT(A) TO ASSESSEE REQUIRING HER TO FURNISH A SEPARATE APPLICATION FOR CONDONATION OF DELAY IF ANY, IN FILING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE SET ASIDE THE ORDER OF CIT(A) IN TOTO AND REMAND THE MATTER TO THE CIT(A) WITH A DIR ECTION TO DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AT THE SAME TIME, W E DIRECT THE ASSESSEE TO SUBMIT APPLICATION FOR CONDONATION OF DELAY IN FILI NG THE APPEAL BEFORE THE CIT(A) TOGETHER WITH DOCUMENTARY EVIDENCE, IF ANY. 8. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. 6 ITA NO. 372/CHD/2015:- 9. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF CIT(A)- 1 CHANDIGARH DATED 21.1.2015 IN CONFIRMING THE PEN ALTY OF RS. 11,40,905/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, FOR THE ASSE SSMENT YEAR 2010-11. 10. IT IS OBSERVED THAT THE LD. CIT(A) HAS DISMISSE D THE APPEAL OF THE ASSESSEE IN-LIMINE OBSERVING THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY OF 17 DAYS IN FILING THE APPEA L BEFORE HIM. IN FACT, THERE IS NO DISCUSSION ON MERITS OF THE CASE. SINCE WE HAVE SET ASIDE THE ORDER OF THE CIT(A) PASSED IN THE QUANTUM APPEAL AND REMANDED TH E MATTER TO HIM FOR A FRESH DECISION IN ACCORDANCE WITH LAW. IN THIS CASE THE IMPUGNED PENALTY HAS BEEN LEVIED ON THE AMOUNT OF ADDITION MADE IN THE ASSESS MENT ORDER, THEREFORE, WE THINK IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDE R AND REMAND THE MATTER TO THE CIT(A) WITH A DIRECTION TO DECIDE THE MATTER AFRES H IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO SUBMIT THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE ABOVE APPEAL BEFORE THE CIT(A). 11. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22.01.2016 SD/- SD/- (ANNAPURNA MEHROTRA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED 22 ND JANUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR