Sh. Ajay Behl, Amritsar. V. The Income-tax Officer, Amritsar.

ITA 400/ASR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0597 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 30-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Ignorance of law

Judgement Text

ITA NO.400(ASR)/20212 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.400(ASR)/2012 ASSESSMENT YEAR:2001-02 PAN :ADLPB5175D SH. AJAY BEHL, VS. INCOME TAX OFFICER, ISLAMABAD, WARD 3(1), AMRITSAR. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. ASHWANI KALIA, CA RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING: 10/01/2013 DATE OF PRONOUNCEMENT:10/01/2013 ORDER PER BENCH ; THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER PASSED BY CIT(A), AMRITSAR DATED 27.12.2010 FOR TH E ASSESSMENT YEAR 2001- 02. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E DISPUTED BY BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. ITA NO.400(ASR)/2012 2 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE, SH. ASHWANI KALIA, CA, FILED AN AFFIDAVIT OF SH. AJAY BEHL S/ O SH.ONKAR NATH BEHL, R/O 70- TAYLOR ROAD, AMRITSAR, FOR CAUSING NON-APPE ARANCE BEFORE THE LD. FIRST APPELLATE AUTHORITY, THE CONTENTS OF THE SAME ARE REPRODUCED AS UNDER: AFFIDAVIT OF AJAY BEHL I, AJAY BEHL SON OF SH. ONKAR NATH BEHL RESIDENT O F 70-TAYLOR ROAD, AMRITSAR DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: 1. THAT I AM A REGULAR INCOME TAX ASSESSEE WITH IT O WARD 3(1), AMRITSAR PROP. AJAY TEXTILES ISLAMABAD, AMRITSAR W HICH IS LYING CLOSED FOR THE LAST MORE THAN 9 TO 10 YEARS. 2. THAT SERIOUS DISPUTES HAD ARISEN BETWEEN THE FA MILIES OF MY FATHER SH. ONKAR NATH BEHL; AND FAMILIES OF MY UNC LE SH. PIARE LAL BEHL WHICH RESULT IN LARGE NUMBER OF CIVIL AND CRI MINAL SUITS AGAINST EACH OTHER SINCE BOTH THE FAMILIES WERE RUNNING JO INT BUSINESS WHICH WERE ALSO SITUATED AT ISLAMABAD, AMRITSAR. 3. THAT BOTH THE FAMILIES I.E. THAT OF SH. PIARE L AL BEHL AND SH. ONKKAR NATH BEHL, INCLUDING MYSELF ARE RESIDING AT 70 TAYLOR ROAD, AMRITSAR. 4. TAT THERE WAS COMMON ENTRANCE TO OUR ABOVE RESI DENTIAL HOUSE WHERE BOTH THE FAMILIES ARE RESIDING AND THE PORTI ON IN OCCUPATION OF THE FAMILY OF MY UNCLE COMES FIRST. 5. THAT WHATEVER NOTICES OR ORDERS WERE ISSUED BY THE INCOME TAX DEPTT OR ANY OTHER OFFICE WERE INTENTIONALLY RECEI VED BY THE FAMILY OF LATE PIARE LAL BEHL AND WERE NOT HANDED OVER TO ME WITH THE INTENTION TO HARASS ME SINCE MY PROPRIETORY FIRM WAS LYING C LOSED ALL THE NOTICES WERE SERVICED AT THE RESIDENTIAL ADDRESS. 6. IT WAS FOR THIS REASON THAT I NEITHER RECEIVED ANY OF THE NOTICES REGARDING FIXATION OF PENALTY PROCEEDINGS U/S 271( 1)(C) NOR THE PENALTY ITA NO.400(ASR)/2012 3 ORDER U/S 271(1)(C) DATED 26.6.2008 PASSED BY ITO WARD 3(1), AMRITSAR. 7. THAT I CAM TO KNOW OF PENALTY ORDER WHEN RECOVE RY PROCEEDINGS WERE INITIATED AGAINST ME FOR THE RECOVERY OF PENA LTY AMOUNT OF RS.198200. AS SOON AS I CAME TO KNOW OF THE ORDER U/S 271(1)(C) I APPLIED FOR THE COPY OF THE SAME AND FILED THE APP EAL BEFORE LD. CIT(A) WITH A REQUEST IN THE GROUNDS OF APPEAL, TO CONDONE THE DELAY. IT WAS FOR THIS REASON THAT I COULD NOT FILE THE A PPEAL BEFORE THE CIT(A) AGAINST THE ABOVE PENALTY ORDER IN TIME. 8. THAT FOR THE SAME REASON I RECEIVED NEITHER THE NOTICE OF FIXATION OF APPEAL NOR ORDER OF THE LD. CIT(A). LA TER ON WHEN I CAME TO KNOW OF THIS ORDER I APPLIED FOR A COPY OF THE SAME AND THEN IMMEDIATELY FILED THE APPEAL BEFORE THE HONBLE B ENCH. 9. FURTHER, MY COUNSEL CA GARRY BHATIA DEVELOPED A CLOT IN HIS BRAIN AS A RESULT OF WHICH EVEN HE COULD NOT PURSU E THE CASE AS HE REMAINED BED RIDDEN FOR A LONG PERIOD DURING THAT PERIOD. SD/- DEPONENT VERIFICATION I, AJAY BEHL NAMED ABOVE DO HEREBY SOLEMNLY AFFIRM AND DECLARE THAT WHAT HAS BEEN STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. SD/- DEPONENT 4. ON THE CONTRARY, THE LD. DR STRONGLY OPPOSED THE REQUEST MADE BY THE ASSESSEE AND RELIED UPON THE ORDER PASSED BY THE LD . FIRST APPELLATE AUTHORITY. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD AVAILABLE WITH US ESPECIALLY, THE IMPUGNED ORDER. WE FIND THAT THE A SSESSEE REMAINED NON- COOPERATIVE IN THE APPELLATE PROCEEDINGS BEFORE TH E LD. FIRST APPELLATE ITA NO.400(ASR)/2012 4 AUTHORITY AS STATED BY THE LD. CIT(A) IN PARA 3 OF THE IMPUGNED ORDER WHICH IS REPRODUCED AS UNDER: 3. FURTHER, THE APPELLANT HAS BEEN AFFORDED FOLLOW ING OPPORTUNITIES OF BEING HEARD AND ALL THE TIMES THE SAME REMAINED UN- COMPLIED WITH AS NEITHER ANYBODY ATTENDED NOR ANY SORT OF REPRESENTATION IN WRITING HAS BEEN FORTHCOMING FRO M THE APPELLANTS SIDE. SL. DT. OF NOTICE DT. OF FIXATION DT. OF SERVICE & ITS MODE HOW COMPLIED WITH? 1 9.11.10 2.12.10 BY POST VIDE DISPATCH NO.998 DT.9.11.10 REMAINED UN- COMPLIED WITH AS NEITHER ANYBODY ATTENDED NOR ANY REQUEST FOR ADJOURN,ENT RECEIVED. 2. 18.4.11 12.5.11 20.4.11 THU N/S -DO 3. 30.5.11 16.6.11 3.6.11 THRUN/S -DO- 4. 1.7.11 13.7.11 3.7.11 THRUN/S -DO- 5. 18.7.11 28.7.11 23.7.11 THRUN/S -DO- 6. 12.12.11 27.12.11 13.12.11 THRUN/S -DO- FROM THE ABOVE NOTED FACTS, IT IS ABUNDANTLY EVIDEN T THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THIS APPEAL ANY LONGER .CONSIDERING ALL THE FACTS OF THE CASE. IN THE GIVEN STATEMENT OF FACTS NARRATED IN THE APPEAL MEMO ON FORM NO.35, IT HAS BEEN CONTENDED THAT FIR STLY THE APPELLANT HAS NOT BEEN GIVEN OPPORTUNITY OF BEING HEARD WHIC H IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND APPELLANT CAME T O KNOW ABOUT PASSING OF THIS PENALTY ORDER AFTER THE SAME HAS BEEN ISSUED BY THE AO. HERE, IT WOULD BE PERTINENT TO PINT THAT THAT IGNORANCE OF LAW IS NO ITA NO.400(ASR)/2012 5 EXCUSE IN THE EYE OF LAW. SECONDLY, IT IS THE APPE LLANTS CASE THAT THE AO HAS PASSED THE IMPUGNED PENALTY ORDER U/S 217(1 )(C) THEREBY IMPOSING PENALTY OF RS.198200/- FOR AT 01-02 IGNOR ING THE FACT THAT THE APPELLANT HAS VOLUNTARILY SURRENDERED THE INCO ME OF RS.6088283/- SUBJECT TO NO PENALTY AND PROSECUTION. FROM THE PE RUSAL OF THE PENALTY ORDER, IT IS GATHERED THAT THE APPELLANT HAS ACCEP TED THE ASSESSMENT ORDER BY NOT FILING ANY QUANTUM APPEAL. FURTHER, A S DISCUSSED SUPRA, NUMEROUS OPPORTUNITIES OF BEING HEARD HAVE BEEN GI VEN BEFORE LEVYING THE IMPUGNED PENALTY. THUS, IT IS NOT CORRECT ON T HE PART OF THE APPELLATE TO STATE THAT HE WAS NOT ALLOWED ANY OPP ORTUNITY OF BEING HEARD AND THIS ALLEGATION BEING FALSE CANNOT BE GI VEN ANY WEIGHTAGE AT THIS JUNCTURE, AS IS BORNE OUT FROM THE PRESENT BEHAVIOUR AND CONDUCT ON THE PART OF THE APPELLANT DURING THE A PPELLATE PROCEEDINGS. THUS, THE CONTENTIONS OF THE APPELLAN T ARE DEVOID OF ANY CONSIDERATION IN THE ABSENCE OF ANY RELEVANT POSIT IVE DOCUMENTARY EVIDENCE ADDUCED IN SUPPORT THERETO. VIEWING THE M ATTER ON ALL ANGLES, I AM OF THE CONSIDERED OPINION, BESIDES ON MERITS, THE APPEAL IS LIABLE TO BE DISMISSED IN LIMINE, BEING NOT MAI NTAINABLE. 6. KEEPING IN VIEW THE AFORESAID PROCEEDINGS IN WHICH THE ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. FIRST APPEL LATE AUTHORITY, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND IN VIEW OF THE REASONS MENTIONED BY THE ASSESSEE IN THE AFFIDAVIT, THE ISS UE IN DISPUTE DESERVES TO BE SET-ASIDE TO THE LD. FIRST APPELLATE AUTHORITY T O PASS A SPEAKING ORDER AND DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIV ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSE. WE ARE ALSO OF THE VIEW THAT THE CONDUCT OF THE ASSESSEE IN THE APPELLATE PROCEE DINGS WAS NOT APPRECIABLE, AS THE OFFICE OF THE CIT(A) HAD ISSU ED NOTICES MANY TIMES TO THE ASSESSEE, AS A RESULT LOSS HAS BEEN CAUSED T O THE REVENUE BECAUSE OF ITA NO.400(ASR)/2012 6 THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE. THERE FORE, COST OF RS.1000/- (RS. ONE THOUSAND ONLY) IS AWARDED AGAINST THE ASSE SSEE AND THE ASSESSEE IS DIRECTED TO DEPOSIT THE SAME IN THE CENTRAL GOVT . ACCOUNT AFTER OBTAINING CHALLAN FROM THE SAID A.O. THE LD. CIT(A) WILL TAKE UP HEARING AFRESH AFTER ENSURING THAT THE ASSESSEE HAS DEPOSIT ED THE AMOUNT OF COST AWARDED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH JANUARY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10TH JANUARY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SHRI AJAY BEHL, AMRITSAR. 2. THE ITO WARD 3(1),AMRITSAR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR. ITA NO.400(ASR)/2012 7