Sh. Balbir singh, MANSA V. The Income Tax Officer, MANSA

ITA 384/ASR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5602 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 11-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.384(ASR)/2016 ASSESSMENT YEAR:2005-06 SH. BALBIR SINGH, S/O SH. GURDEV SINGH, WARD NO.12, MALLE DE KOTHE LALLUANA ROAD, MANSA. PAN: - VS. INCOME TAX OFFICER, WARD-1(4), MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY: NONE. RESPONDENT BY: SH. RAHUL DHAWAN (DR.) DATE OF HEARING : 20.04.2017 DATE OF PRONOUNCEMENT: 09.05.2017 ORDER PER DIVA SINGH, JM : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 18.03.2015 OF CIT(A)-BATH INDA, PERTAINING TO 2005-06 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS. (I) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO HAS ERRED IN MAKING ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT IN RESPONSE TO NOTICE UNDER SECTION 147 WHICH HAS NEVE R BEEN SERVED AS REQUIRED UNDER LAW. AS SUCH, ASSESSMENT FRAMED IS ILLEGAL AN D INVALID. THE SAME BE CANCELLED. (II ) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO HAS ERRED IN MAKING ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT IN RESPONSE TO NOTICE UNDER SECTION 147 ISSUED MERELY ON PRESUMPTION ON THE BASIS OF AIR INFORMATION WITHOUT MAKING ANY INQUIRY AS AP PARENT FROM THE RECORD THAT EVEN THE ACTUAL INCOME IN THE SHAPE OF SALARY RECEI VED FROM THE GOVERNMENT HAS BEEN ASSESSED BY THE ASSESSING OFFICER AT THE TIME OF MAKING ASSESSMENT. AS SUCH, ASSESSMENT MADE ON THE BASIS OF ILLEGAL AND I NVALID NOTICE ISSUED WITHOUT JURISDICTION MERELY ON PRESUMPTION, IS A INVALID AS SESSMENT, HENCE, VOID AB INITIO. THE SAME BE CANCELLED. (III) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO HAS ERRED IN MAKING ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT IN RESPONSE TO NOTICE UNDER SECTION 147 OF THE I.T. AC T WITHOUT PROVIDING REASONABLE AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE APPELLAN T. AS SUCH, ASSESSMENT FRAMED IS NOT JUSTIFIED. THE SAME BE CANCELLED. (IV) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE WORTHY CIT(A) ERRED IN DECIDING APPEAL EX-PARTE WITHOUT PR OVIDING REASONABLE AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE APPELLANT AS APPARENT FROM THE APPELLATE ORDER ITSELF ESPECIALLY WHEN THE APPEAL HAS BEEN FI LED THROUGH A SENIOR COUNSEL. (V) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED AO HAS ERRED IN MAKING ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT IN RESPONSE TO NOTICE UNDER SECTION 147 ON ACCOUNT OF UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT WITHOUT AFFORDING OPPORTUNITY TO THE A SSESSEE APPELLANT TO EXPLAIN THE DEPOSIT OF SUCH AMOUNT AND IF ALLOWED THE DEPOS ITS CAN BE PROPERLY EXPLAINED BY THE ASSESSEE APPELLANT. AS SUCH, ADDIT ION MADE OF RS.10,25,000/- IS UNJUSTIFIED. THE SAME BE DELETED . ITA NO.384 (ASR)/2016 ASST. YEAR: 2005-06 2 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION WAS PLA CED ON BEHALF OF THE ASSESSEES COUNSEL PRAYING FOR TIME. AN OFFICE A SSOCIATE WAS PRESENT IN SUPPORT OF THE APPLICATION FILED. HOWEVER, CONSIDER ING THE FACTS THAT THE APPEAL COULD BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, IT WAS DEEMED APPROPRIATE TO REJECT THE ADJOUR NMENT APPLICATION AFTER HEARING THE LD. SR. DR AND DECIDE THE APPEAL EX-PA RTE QUA THE ASSESSEE APPELLANT ON MERITS. 3. THE RECORD SHOWS THAT THE REGISTRY HAS POINTED OUT THAT THERE IS A DELAY IN FILING OF THE APPEAL. THE ASSESSEE HAS PLACED A CON DONATION OF DELAY APPLICATION ALONGWITH AN AFFIDAVIT OF THE ASSESSEE DATED 12 TH AUGUST, 2016 ON RECORD. IT IS SEEN THAT THE DELAY OF 419 DAYS HAS BEEN EXPLAINED AS PER THE APPLICATION ON RECORD AS UNDER: (1) THAT I AM 59 YEARS OLD MATRIC PASS ONLY AND WORKING AS PUMP OPERATOR WITH THE PUNJAB STATE WATER SUPPLY & SANITATION DEP ARTMENT AT MANSA DRAWING SALARY RS.22,000/- PER MONTH. (2) THAT ASSESSMENT IN MY CASE HAS BEEN COMPLETED U NDER SECTION 144 OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2005-06 BY T HE ASSESSING OFFICER, WARD 1(4), MANSA VIDE ASSESSMENT ORDER DATED 11.03.2013 ON ACCOUNT OF NON APPEARANCE IN SPITE OF VARIOUS NOTICES ISSUED BY HI M FROM TIME TO TIME AND AS PER ASSESSMENT ORDER TAX AMOUNTING TO RS.6,19,050/- HAS BEEN LEVIED ON ACCOUNT OF DEPOSITS MADE IN THE BANK AMOUNTING TO R S.10,25,000/- (3) THAT AGAINST THE ASSESSMENT ORDER, I HAD FILED APPEAL BEFORE THE WORTHY COMMISSIONER OF INCOME TAX(APPEALS), BATHINDA. THE SAME WAS DECIDED AS DISMISSED ON ACCOUNT OF NON APPEARANCE VIDE ORDER D ATED 18.03.2015. AS PER APPELLATE ORDER, I HAVE ATTENDED THE APPELLATE PROC EEDINGS FIXED VIDE NOTICES DATED 04.08.2014, 08.09.2014, 05.11.2014 AND 17.11. 2014 BUT SO FAR AS I REMEMBER NO SUCH NOTICE HAS BEEN RECEIVED BY ME. 3.1 IT IS FURTHER SEEN THAT AS PER THE AFFIDAVIT ON REC ORD FOLLOWING AVERMENTS HAVE BEEN MADE. (3) THAT MY ONLY SON WHO WAS STUDENT OF KHALSA COLLEGE, CHANDIGARH WAS FALSELY BOOKED BY THE POLICE ON 04-03-2009 UNDER SECTION 260, 324, 323, 506, 356, 379 AND 148 READ WITH SECTION 149 OF THE IPC A ND SECTION 25 OF THE ARMS ACT AND AFTER A PROLONGED LITIGATION MY SON WAS DISCHARGED BY THE HONBLE ADDITIONAL SESSION JUDGE, MANSA, VIDE ORDER DATED 2 1-09-2012. MY SON WAS AGAIN BOOKED BY THE POLICE UNDER SECTION 150, 160 OF THE IPC. THE SAID CASE WAS DECIDED BY THE HONBLE CHIEF JUDICIAL MAGISTRAT E, MANSA ON 30-03-2013. THEREAFTER THE POLICE BOOKED MY SON UNDER THE NDPS ACT, 1985 ON 02-09-2013 AND REMAINED IN JAIL FOR ONE YEAR TILL RELEASED ON BAIL. AFTER BAIL MY SON REMAINED UPSET AND WAS MURDERED IN NOVEMBER 2015 (DEATH CERTIFICATE IS ENCLOSED HEREWITH). (4 ) THAT BECAUSE OF THESE REASONS, I COULD NOT FILE T HE APPEAL IN TIME INSPITE OF THE FACT THAT THE DEPARTMENT IS RECOVERING RS.80 00/- PER MONTH FROM MY SALARY AS I HAVE NO OTHER SOURCE OF INCOME EXCEPT MY SALA RY TO RECOVER THE AMOUNT OF RS.619050/- LEVIED BY THE DEPARTMENT AS T AX AND RS.315840/- AS PENALTY U/S 271(L)(C) VIDE ORDER DATED 28-09-2016 A ND ALSO PENALTY OF RS.10000/- U/S 271(L)(B) OF THE IT ACT, 1961. (5). THAT I REMAINED ALL THE TIME UNDER DEPRESSION AND R EMAINED UPSET AND I COULD NOT DO ANY WORK IN THE DAY BECAUSE OF DEA TH OF MY SON. THUS, THERE ITA NO.384 (ASR)/2016 ASST. YEAR: 2005-06 3 WAS REASONABLE AND SUFFICIENT CAUSE IN NOT FILING T HE APPEAL IN TIME. IT IS PRAYED THAT UNDER THESE CIRCUMSTANCES, THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDONED. (EMPHASIS PRO VIDED) 4. ON A READING OF THE ABOVE FACTS ON RECORD, TH E LD. SR. DR WAS REQUIRED TO RESPOND TO THE SAME. MR. RAHUL DHAWAN, SR. DR FOR THE REVENUE SUBMITTED THAT AS PER THE AFFIDAVIT ON RECORD TH E ASSESSEES SON EXPIRED IN NOVEMBER, 2015, HOWEVER, STILL THE APPEAL HAS BEE N FILED IN JULY, 2016 AND THUS, EVEN THEN THERE IS A CONSIDERABLE T IME LAPSE WHICH THE ASSESSEE NEEDS TO EXPLAIN. 5. CONSIDERING THE FACTS A QUERY WAS PUT TO THE LD. SR. DR THAT THE ASSESSEE AS PER THE APPLICATION IS SHOWN TO BE MATRIC PA SS AND ONLY WHEN RECOVERY OF RS.8,000/- PER MONTH WAS STARTED FROM HIS SALARY, HE STATES THAT HE BECOME AWARE OF THE PROCEEDINGS AGAINST HIM. IN THE APPLICATION AND THE AFFIDAVIT ON RECORD THE ASSESSEE HAS C LAIMED TO HAVE REMAINED UNDER DEPRESSION ON ACCOUNT OF MULTIPLE LITIGATIONS FACED BY HIS SON WHO ULTIMATELY WAS MURDERED. THE ASSESSEE AS PE R APPLICATION AND AFFIDAVIT HAS STATED THAT BEING EXHAUSTED BY THE PRO LONGED LITIGATION WHERE THE SON ULTIMATELY WAS MURDERED, IN THE CIRCUMST ANCES THE STATEMENT THAT HE REMAINED SUFFERING FROM DEPRESSION, ANX IETY AND DISTURBANCE CANNOT BE DISCARDED. THE CONSEQUENT DELAY THERETO EVEN IF THE UNPLEASANT EVENT TOOK PLACE IN NOV.2015 CANNOT BE D ISBELIEVED TO HAVE CONTINUED FOR THE NEXT 7-8 MONTHS. THE TRAUMA SUFF ERED BY THE FAMILY IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESE NT CASE DEFINITELY CONSTITUTES A REASONABLE CAUSE FOR LATE FILING OF TH E PRESENT APPEAL. CONFRONTED WITH THE ABOVE LINE OF QUERY THE LD. SR . DR DID NOT POSE ANY OBJECTION AND SUBMITTED THAT HE WOULD ONLY LIKE TO BRING OU T THE FACT AS PER THE AFFIDAVIT ON RECORD. 6. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. I FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE CASE WHERE THE ASSESSEE LOST HIS SON IN MOST UNFORTUNATE CIRC UMSTANCES IN THE PECULIAR FACTS AND CIRCUMSTANCES, THE BENEFIT OF DOUBT CAN BE GIVE N TO THE ASSESSEE AS A GROUND FOR REMAINING TRAUMATIZED BY T HE UNFORTUNATE TRAGIC LOSS OF A YOUNG LIFE AND THE AVERMENT THAT ONLY O N NOTICING THE RECOVERY BEING MADE FROM HIS SALARY HE BECAME AWARE OF T HE PENDING LITIGATION. THE FACTS AND CIRCUMSTANCES AS SET OUT HEREINAB OVE CONSTITUTE A REASONABLE CAUSE AND BEING SATISFIED BY THE EXPLANATION O FFERED AND THE AVERMENT MADE, THE DELAY OF 419 DAYS IS CONDONED. ORDERED ACCORDIN GLY. ITA NO.384 (ASR)/2016 ASST. YEAR: 2005-06 4 6.1 IT IS SEEN THAT THE IMPUGNED ORDER IS AN EX-PART E ORDER. THE REASON FOR NON-REPRESENTATION, APPARENTLY ARE THE SAME AS THE REASONS FOR LATE FILING OF THE APPEAL. ACCORDINGLY, SINCE IT HAS BEEN PASSED W ITHOUT HEARING THE ASSESSEE WHO DUE TO UNFORTUNATE FAMILY CIRC UMSTANCES, COULD NOT AVAIL OF THE OPPORTUNITIES PROVIDED. ACCORDINGLY , THE SAME IS SET ASIDE BACK TO THE FILE OF THE LD. CIT (A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE AS SESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6.2 IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IN GOO D FAITH IS UTILIZED BY THE ASSESSEE FAIRLY BY MAKING FULL AND PROPER CO MPLIANCE BEFORE THE COMMISSIONER APPEAL. IN THE EVENT OF ABUSE, IT IS MADE CLEAR THAT THE LD. COMMISSIONER SHALL BE AT LIBERTY TO DECIDE T HE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH MAY,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER /PK/PS./POONAM(CHD) COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER