Sahab Singh, Noida V. ITO, Ward- 3(3), Noida

ITA 3965/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0946 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: RAVINDER PAL BANSAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI FRIDAY-F BENCH, NEW DELHI ) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3965/DEL/2018 ASSTT. YEAR : 2009-10 SAHAB SINGH VS. ITO, WARD 3(3), VILLAGE BHATTA, NOIDA PO DANKAUR, NOIDA, UTTAR PRADESH (PAN: HNOPS9360H) ( APPLICANT) ( RESPONDENT ) APPLICANT BY : SH. RAVINDER PAL BANSAL, ADV. RESPONDENT BY : SH. SURENDER PAL, SR. DR. ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS PREFERRED AN APPLICATION FOR EARLY HEA RING IN THE MAIN APPEAL. HOWEVER, AT THE TIME OF HEARING, BOTH TH E PARTIES AGREED THAT LD. CIT(A) HAS DECIDED THE CASE OF THE ASSESSEE EXPARTE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THERE FORE, THE MAIN APPEAL MAY BE DECIDED TODAY ITSELF. ACCORDINGLY, THE APPLICATION FOR EARLY HEARING HAS BECOME INFRUCTUOUS AND DISMISSED AS SUCH. 2 HOWEVER, THE MAIN APPEAL HAS BEEN DIRECTED AGAINST T HE IMPUGNED ORDER DATED 28.3.2018 PASSED BY THE LD. CIT(A)-I, NOID A PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN THE MAIN APPEAL READ AS UNDE R:- 1. THAT THE LD. OFFICER HAS ERRED IN PASSING THE ORDER U/S 144/147, IN ABSENTIA, TO THE BEST OF JUDGEMENT AND THE LD. CIT (APPEAL)-1 HAS FURTHER ERRED IN CONFIRMING THE ACTION OF THE AUTHORITIES BEL OW AND HAS REJECTED THE APPEAL OF THE APPELLANT. 2. THAT THE LD. AUTHORITIES BELOW HAS FURTHER GROSSLY ERRED IN TREATING THE ENTIRE DEPOSITS OF RS.5000000/-, AS ALLEGED, AS INCOME FROM UNDISCLOSED SOURCES AND ADDED THE SAME IN THE INCOME OF THE APPELLANT. THE LD. CIT(APPEALS)-1 HAS FURTHER GROSSLY ERRED IN CONFIRMING THE ACTION OF THE AUTHORITIES BEL OW. 3. THAT THE LD. CIT(APPEALS) HAS REJECTED THE APPEAL OF THE APPELLANT ON THE PLEA OF TAKING REPEAT ED ADJOURNMENTS WHEREAS THE APPELLANT SOUGHT ONE ADJOURNMENT DUE TO THE AILMENT OF THE COUNSEL AND FURTHER NOTICE FOR 21.03.2018, WHICH WAS RECEIVED TOO LATE I.E ON THE DATE FIXED FOR HEARING. ON THE SAID D ATE 3 THE COUNSEL ON BEHALF OF THE APPELLANT DULY APPEARED N SOUGHT ADJOURNMENT FOR PREPARING THE CASE. INSTEAD THE LD. CIT(APPEALS)-1 HAS GRANTED THE ADJOURNMENT APPLICATION HAS REJECTED THE APPEAL WHICH IS AGAINST THE PRINCIPLE OF LAW OF OF NATURAL JUSTICE AND EQUITY . IN OTHER WORDS THE LD. CIT(APPEALS)-1 HAS DEPRIVED THE APPELLANT TO PRODUCE HIS CASE AND DISCUSS THE SAME O N MERITS. 4. THAT THE PLEA OF THE LD. CIT(APPEALS)-1 IN REGARD TO THE FILING OF APPEAL LATE IS AGAINST FACTS AND BAD IN LAW IN AS MUCH AS THE APPELLANT FILED THE AP PEAL AS AND WHEN THE COPY OF ORDER WAS RECEIVED. THE LD. CIT(APPEALS) HAS TAKEN THIS VIEW WITHOUT GOING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APPELLA NT HAS FILED THE APPEAL WITHIN STIPULATED TIME I.E. WI THIN ONE MONTH FROM THE DATE OF RECEIPT. IF AT ALL THERE W AS ANY ADVERSE MATERIAL ON RECORD THE SAME SHOULD HAVE BEEN BROUGHT ON RECORD. BUT THE LD. CIT(APPEALS)-1 HAS FAILED TO DO SO. SO MUCH SO NO REMAND REPORT HAS EVER BEEN CALLED FOR. THE LD. CIT(APPEALS)-1 HAS TAKEN A VERY HARSH VIEW. 4 5. THAT THE APPELLANT WAS DEPRIVED TO PLEAD HIS CASE ON MERITS BY NOT ALLOWING HIM ANY OPPORTUNITY OF BEING HEARD. THERE IS A PRINCIPLE LAID DOWN WHILE TAKING ANY ADVERSE INFERENCE A PROPER OPPORTUNITY OF BEING HEARD MUST BE PROVIDED TO THE AGGRIEVED PARTY BUT IN THE INSTANT CASE NO SUCH OPPORTUNITY HAS BEEN GIVEN AND THE LD. CIT(APPEALS)-1 HAS HASTILY PROCEEDED TO REJECT THE APPEAL OF THE APPELLANT. 6. THAT THE LD. CIT(APPEALS) HAS CONFIRMED THE ADDITIONS OF RS.5000000/- WITHOUT GOING INTO THE MERITS AND FACTS AND CIRCUMSTANCES OF THE CASE. 7. THAT THE LD. CIT(APPEALS) HAS DRAWN AN INFERENCE ABOUT THE ISSUE OF NOTICES U/S 148 AND OTH ER NOTICES IS AGAINST FACT AND LAW. IT IS INCUMBENT UP ON THE AUTHORITIES BELOW TO ASCERTAIN THE SERVICE OF NOTICES.. BUT IN THE INSTANT CASE THE AUTHORITIES BE LOW AND THE LD. CIT(APPEALS)-1 HAS NEVER CARED TO DO SO. ADMITTEDLY NOTICES WERE ISSUED AT THE ADDRESS OF TH E APPELLANT BUT THOSE NOTICES HAVE NEVER BEEN SERVED UPON THE APPELLANT AT ANY STAGE. THE ONUS LIES UPON THE AUTHORITIES BELOW AND IN THE INSTANT CASE THE 5 AUTHORITIES BELOW AND THE LD. CIT(APPEALS)-1 HAS FAILED TO DISCHARGE THEIR DUTIES. 8. THAT THERE WERE A LOT OF FACTS WHICH WERE ALSO NEVER TAKEN INTO CONSIDERATION. THE APPELLANT, THROUGH HIS BROTHER, HAS FILED A WRITTEN SUBMISSION BEFORE TH E LD. AUTHORITIES BELOW BUT THE SAME WAS NEGLECTED AND NEVER TAKEN INTO CONSIDERATION. MOREOVER IT WAS ALSO BROUGHT IN THE NOTICE OF THE AUTHORITIES BELOW THAT T HE SAVING ACCOUNT WAS IN THE NAME OF THREE PERSONS, APPELLANT AND HIS TWO BROTHERS. 9. THAT THE ACTION OF THE LD. AUTHORITIES BELOW AND THE LD. CIT(APPEALS)-1 IS ARBITRARY, BAD IN LAW, WITHOUT JUSTIFICATION AND ILLEGAL. THERE IS NOTHING ON RECORD TO SUGGEST SUCH AN ADDITION MOREOVER THE ASSESSMENT MADE U/S 144/147 IS ABSOLUTELY ILLEGAL AS NO NOTICE U/S 148 HAS EVER BEEN SERVED UPON THE APPELLANT. IN THE ABSENCE OF SUCH A NOTICE THE ORDE R SO PASSED BY THE LD. AUTHORITIES BELOW IS AGAINST FACTS AND BAD IN LAW. 10. THAT AS STATED ABOVE THE BANK ACCOUNT IN QUESTION IS IN THE NAME OF THREE PERSONS, APPELLANT 6 AND HIS TWO BROTHERS SO ADDITION MADE ONLY IN THE HANDS OF THE APPELLANT IS ALSO AGAINST FACTS AND LA W. 11. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDERS PASSED BY THE LD. AUTHORITIES BELOW AND LD. CIT(APPEALS)-1 ARE AGAINST FACTS, ARBITRARY, BAD IN LAW, BASED ON SURMISES, SUFFERS FROM LEGAL INFIRMITY AND ILLEGAL. THE ORDERS SO PASSED ARE LIABLE TO BE SET-ASIDE HAVING REGARDS TO THE FACTS A ND CIRCUMSTANCES OF THE CASE. 12. THAT ANY OTHER GROUND(S) MAY PLEASE ALSO BE URGED AT THE TIME OF HEARING OF APPEAL. PRAYER IN THE ABSENCE OF NOTICE U/S 148 THE ORDER SO PASSED BEING VOID IN AB INITIO, THEREFORE, LIABLE TO BE CANCELLED. THE ADDITION OF RS.5000000/- BEING ILLEGAL IS ALSO LIABLE TO BE CANCELLED. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT D ISPUTED, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE AUT HORITIES BELOW. WE FIND THAT AO HAS PASSED THE EXPARTE ORDER DATED 09.12. 2016 U/S. 7 144/147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) AND SIMILARLY, THE LD. CIT(A) HAS ALSO PASSED THE EXPARTE ORDER DAT ED 28.3.2018 BY ONLY UPHOLDING THE ORDER OF THE AO AND DID NOT PASS A SPEAKING ORDER, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. KEEPI NG IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ISSUES IN VOLVED IN THE MAIN APPEAL NO. 3965/DEL/2018 (AY 2009-10) ARE SET ASIDE T O THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAM E AFRESH, IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS A SPEAKING ORDER. THE ASSE SSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE LD. CIT(A) IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND ALSO PR ODUCE NECESSARY EVIDENCES BEFORE HIM TO SUBSTANTIATE HIS CASE. 5. IN THE RESULT, THE ASSESSEES APPLICATION FOR EARLY HEARING IS DISMISSED AND THE MAIN APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE AFORESAID MANNER. ORDER PRONOUNCED ON 25-03-2019. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 25/03/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. DIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 8