Sh.Amandeeep Singh B-XXIX/51/1, Ludhiana V. Income Tax Officer Ward-V(1), Ludhiana

ITA 442/CHANDI/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7426 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-07-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Tax effect; Set aside
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 442/CHD/2015 ASSESSMENT YEAR : 2010-11 SHRI AMANDEEP SINGH, B-XXIX/51/1, DABA ROAD, G.T. ROAD, LUDHIANA. VS THE ITO, WARD-V(1), LUDHIANA. PAN /TAN NO: ATPSO673G APPELLANT RESPONDENT & ./ ITA NO. 670/CHD/2015 ASSESSMENT YEAR : 2010-11 SHRI JAGPREET SINGH, B-XXIX/51/1, DABA ROAD, G.T. ROAD, LUDHIANA. VS THE ITO, WARD-V(2), LUDHIANA. PAN /TAN NO: ANHPS0591C APPELLANT RESPONDENT ! ASSESSEE BY : SHRI ASHWANI KUMAR, CA ' ! REVENUE BY : SMT. CHANDERKANTA, SR.DR # $ % DATE OF HEARING : 16.07.2019 &'() % D ATE OF PRONOUNCEMENT : 24.07.2019 )-/ ORDER PER BENCH IT WAS A COMMON STAND OF THE PARTIES BEFORE THE BE NCH THAT IN THESE APPEALS THE ISSUES ARISING FOR CONSID ERATION BEFORE THE ITAT ARE IDENTICAL AS THESE ARISE FOR CO NSIDERATION ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 2 OF 7 IN THE LIGHT OF IDENTICAL DIRECTIONS GIVEN BY THE J URISDICTIONAL HIGH COURT IN ITA 181/2016 AND 207/2016. 2. ACCORDINGLY, THE COMMON SUBMISSION WAS THAT THE ARGUMENTS ADVANCED IN ITA 442/CHD/2015 WOULD FULLY APPLY TO THE FACTS AND SUBMISSIONS IN ITA 670/CHD/2015 AS THE ISSUES RAISED ARE IDENTICAL. 3. BOTH LD. AR MR. ASHWANI KUMAR AND LD. SR.DR MS. CHANDERKANTA WERE HEARD. THE RELEVANT FACTS ARE THA T ADDITION WAS MADE TO THE RETURNED INCOME OF THE ASS ESSEES BY WAY OF RESPECTIVE ORDERS PASSED U/S 148 OF THE I NCOME TAX ACT, 1961. THE ASSESSING OFFICER RELYING ON TH E STATEMENT OF SHRI JASWANT SINGH AND CONSIDERING CAS H SEIZED MADE AN ADDITION OF RS. 67 LAKH AND RS. 68 LAKH RES PECTIVELY IN THE CASE OF SHRI AMANDEEP SINGH AND SHRI JAGPREE T SINGH, THE TWO ASSESSEES HEREIN HOLDING THAT EXTRA AMOUNT WAS PAID IN CASH TO THE SELLER OF THE PROPERTY. A PERUSAL OF THE RECORD SHOWS THAT CASH OF ABOVE 2 CRORES WAS SEIZED BY THE POLICE FROM THE FACTORY PREMISES OF M/S SAGAR ENGINEERING WORKS, 419 INDUSTRIAL AREA-A, LUDHIANA. WARRANT OF AUTHOR IZATION UNDER SUB-SECTION (1) OF SECTION 132A OF THE INCOME TAX ACT,1961 WAS ISSUED AND THE STATEMENT OF MR. JASWAN T SINGH WAS RECORDED. HE WAS THE ERSTWHILE PART OWNER OF TH E PROPERTY WHICH HAD BEEN SOLD BY HIM TO THE ASSESSEE . THESE ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 3 OF 7 ASSESSMENT ORDERS WERE CHALLENGED IN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ADDITIONS MADE VIDE HIS OR DER DATED 10.06.2015. SAID ORDERS WERE CHALLENGED BEFO RE THE ITAT. THE ITAT VIDE ORDER DATED 22.12.2015 IN ITA 670/CHD/2015 DELETED THE ADDITION. SIMILARLY, IN T HE CASES OF THE OTHER PURCHASERS, THE ADDITION MADE MET A SI MILAR FATE. THESE ORDERS IN THE CASE OF THESE TWO ASSESS EES WERE CHALLENGED BY THE REVENUE IN APPEAL BEFORE THE HON' BLE HIGH COURT. IN THE CASE OF THE THIRD BROTHER WHO WAS ALS O A CO- PURCHASER OF THE PROPERTY, DUE TO LOW TAX EFFECT TH E FINDING OF THE ITAT WAS NOT UNSETTLED. CONSIDERING THE POSITI ON ON FACTS AND LAW, THE HON'BLE HIGH COURT WAS PLEASED TO REMAND THE ISSUE BACK TO THE ITAT WITH THE FOLLOWIN G DIRECTIONS : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA-181-2016 (O&M) DATE OF DECISION:- 10.05.2017 PR. COMMISSIONER OF INCOME TAX-2, LUDHIANA APPELL ANT(S) VERSUS JAGPREET SINGH ..RESPONDENT ITA-207-2016 (O&M) PR. COMMISSIONER OF INCOME TAX-2, LUDHIANA ..,APPE LLANTS VERSUS AMANDEEP SINGH . . .RESP ONDENT ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 4 OF 7 CORAM; H O N'BLE MR. JUSTICE S . J . VA Z IFD A R, CHIEF JUSTICE HON ' BLE MR. JUSTICE AN U PINDER SINGH GREWAL PRESENT:- MR. ZORA SINGH KLAR, ADVOCATE, FOR THE APPELLANT(S). MR. AKSHAY BHAN, SENIOR ADVOCATE, WITH MR. H.P.S. SANDHU, ADVOCATE, FOR THE RESPONDENTS. * * * S.J. VAZIFDAR, C.J. (ORA L) THESE TWO APPEALS ARE UNDER SECTION 260 A OF THE IN COME TAX ACT, 1961 AGAINST THE ORDER OF THE TRIBUNAL ALLOWING THE RESPONDENTS' /ASSESSEES' APPEALS AGAINST THE ORDER OF THE CIT (APPEALS') CONFIRMING THE ASSESSIN G OFFICER'S ORDER. THE MATTERS PERTAIN TO THE ASSESSMENT YEAR 2010-2011. 2. AS WE INTEND REMANDING THE MATTERS, IT IS NECESS ARY TO REFER TO THE DISPUTES BRIEFLY : ONE JASWANT SINGH AND HIS SON RAHUL SAGAR HAD PUR CHASED A PROPERTY IN THE YEAR 2008. JASWANT SINGH HAD A 75% INTEREST THEREIN AND HIS SON HAD A 25% INTEREST THEREIN. IN MARCH, 2010, THEY SOLD THE PROPERTY TO THREE BROTHERS. TWO OF THE BROTHERS ARE THE RESPOND ENTS IN THE ABOVE APPEALS. AN APPEAL HAS NOT BEEN FILED AGAINST THE THIRD BROTHER ON THE GROUND OF TAX EFFECT. JASWANT SINGH AND RAHUL SAGAR HAD FILED AN FIR ALLE GING THAT AN AMOUNT OF ABOUT RS. 2 CRORES IN CASH WAS STOLEN FROM THEIR PREMISES . THEY ULTIMATELY ALLEGEDLY STATED THAT THE CASH WAS OBTAINED IN RESPECT OF THE SALE OF THE PROPERTY BY THEM TO THE RESPONDENTS HEREIN AND TO THE THIRD BROTHER. IT IS IN VIEW OF THIS THAT PROCEEDINGS WERE INITIATED AGAINST THE RESPONDENTS/ ASSESSEES. THE ASSESSING OFFICER ADDED THE AMOUNTS IN PROPORTION OF THE SHAR ES OF THE RESPONDENTS AND THEIR BROTHER TO THEIR RESPECTIVE INCOMES. 3 . THE ORDER OF THE TRIBUNAL NOTES THAT THE RE SPONDENTS HAD NOT BEEN GIVEN INSPECTION OF CERTAIN DOCUMENTS ESPECIALLY ONE OF T HE STATEMENTS MADE BY JASWANT SINGH AND HIS BANK STATEMENTS AND THE BOOKS OF ACCOUNT. THE RESPONDENTS FURTHER ALLEGED THAT THEY WERE NOT PERM ITTED TO CROSS-EXAMINE THEIR VENDORS. THE APPELLANTS ON THE OTHER HAND CONTEND T HAT THE RESPONDENTS AND THEIR BROTHER REFUSED TO AVAIL THE OPPORTUNITY OF CROSS-E XAMINATION ON THE GROUND THAT THEY HAD NOT BEEN GIVEN INSPECTION OF THE DOCUMENTS . 4. CONSIDERING THE FACTS OF THESE CASES, THE M ATTERS OUGHT NOT TO REST BY DEFAULT. IT IS NECESSARY FOR THE AUTHORITIES TO CONSIDER ALL THE FACTS AND DECIDE THE MATTER ON MERITS. 5. THE APPEALS ARE, THEREFORE, DISPOSED OF BY TH E FOLLOWING ORDER:- (I ) THE IMPUGNED ORDER AND JUDGEMENT IS SET ASIDE AND REMANDED TO THE TRIBUNAL. IT WILL BE OPEN TO THE TRIBUNAL TO DECID E THE MATTER IN SUCH A MANNER AS ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 5 OF 7 IT THINKS FIT INCLUDING BY REMANDING THE MATTER FUR THER, IF NECESSARY, ESPECIALLY FOR THE PURPOSES OF ADDUCING THE EVIDENCE. (II) THE RESPONDENTS SHALL ON OR BEFORE 20.05.2017 INFORM THE APPELLANTS IN W RITING THE DOCUMENTS THAT THEY DESIRE. THE APPELLANTS SHAL L RESPOND TO THE SAME IN WRITING. IF ANY OF THE DOCUMENTS ARE NOT AVAILABLE WITH THE APPELLANTS, THEY SHALL STATE SO IN WRITING. NEEDLESS TO ADD THAT IT WILL BE OPEN TO THE RESPONDENTS IN THAT EVENT TO OBTAIN THE DOCUMENTS IN ACCORDANCE WITH LAW. THE PA RTIES SHALL THEREAFTER BE AFFORDED AN OPPORTUNITY OF BEING HEARD AND OF CROSS -EXAMINING THE RELEVANT WITNESSES. SD/- (S.J.VAZIFDAR) CHIEF JUSTICE SD/- (ANUPINDER SINGH GREWAL) JUDGE ( EMPHASIS SUPPLIED) 4. THE LD. AR INVITING ATTENTION TO THE PAPER BOOK FILED SUBMITTED THAT IN PURSUANCE TO THE DIRECTIONS GIVEN BY THE HON'BLE HIGH COURT, HE HAS FILED COPY OF THE LETTER ON 19.05.2017 BEFORE PR. CIT-2, LUDHIANA SEEKING CERT AIN DOCUMENTS. REPLY OF THE AO IN RESPONSE TO THE LETTE R IS AVAILABLE STATING THAT SOME OF THESE DOCUMENTS ARE AVAILABLE. LETTERS DATED 07.06.2017 AND 06.06.2017 OF THE AO W ERE REFERRED TO. HOWEVER, THE COMPLETE INFORMATION SOUG HT, IT WAS SUBMITTED, TILL DATE HAS NOT BEEN PROVIDED TO HIM. 4.1 IT WAS HIS PRAYER THAT IN THE CIRCUMSTANCES THE MATTER MAY BE REMANDED TO THE AO SO THAT NECESSARY DOCUMEN TS CAN BE CONFRONTED TO THE ASSESSEE AND OPPORTUNITY TO CR OSS EXAMINE SHRI JASWANT SINGH AS DIRECTED BY HON'BLE H IGH COURT MAY BE AVAILED OF BY THE ASSESSEES. ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 6 OF 7 5. THE LD. SR.DR MS. CHANDERKANTA STATED THAT ALL T HE DOCUMENTS ARE AVAILABLE WITH HER AND SHE STATED THA T THESE CAN BE PROVIDED. THE PRAYER FOR REMAND WAS NOT OBJ ECTED TO BY HER AS SHE FAIRLY CONCEDED THAT THE ISSUE CAN BE DECIDED ONLY AFTER THE ASSESSEE HAS CROSS-EXAMINED SHRI JAS WANT SINGH AND FOR ENABLING THE TAX AUTHORITIES TO COMPL Y WITH THE DIRECTIONS OF THE HON'BLE COURT, THE MATTER MAY BE REMANDED BACK TO THE AO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY THE OPPORTUNITY TO CROSS EXAMINE S HRI JASWANT SINGH WAS MADE AVAILABLE TO THE ASSESSEE BY THE TAX AUTHORITIES AS NOTED BY THE HON'BLE COURT IN PARA 3 EXTRACTED IN THE EARLIER PART OF THIS ORDER, HOWEVER IN THE A BSENCE OF DOCUMENTS RELIED UPON BY THE REVENUE, THE OPPORTUNI TY TO CROSS-EXAMINE WAS NOT AVAILED OF. THESE FACTS HAVE BEEN NOTED BY THE HON'BLE HIGH COURT IN PARA 3 OF THE AF ORESAID DECISION. ACCORDINGLY, IN THE LIGHT OF THE PRAYER OF THE PARTIES BEFORE THE BENCH AND ON A CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD, WE AGREE THAT IT WOUL D BE APPROPRIATE AND IN THE INTERESTS OF JUSTICE TO REMA ND THE ISSUE BACK TO THE AO WITH THE DIRECTION TO CONFRONT THE RELEVANT DOCUMENTS RELIED UPON TO THE ASSESSEE AND PROVIDE THE ASSESSEE AN EFFECTIVE OPPORTUNITY TO CROSS-EXAM INE SHRI ITA 442 & 670/CHD/2015 A.Y. 2010-11 PAGE 7 OF 7 JASWANT SINGH IN TERMS OF THE MANDATE OF THE JURISD ICTIONAL HIGH COURT. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JULY,2019. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT4. 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR