Sh. Kamaljit Singh, Ludhiana V. ITO, Ludhiana

ITA 443/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5374 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Additional evidence; Reason to believe; Reassessment proceedings
• Section: 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 443/CHD/2017 ASSESSMENT YE AR: 2009-10 SHRI KAMALJIT SINGH, VS. THE ITO, S/O SHRI PURAN SINGH, WARD III(4), 3794/2, PRITAM NAGAR, LUDHIANA. JAWADDI ROAD, LUDHIANA. PAN NO. AEHPS1620K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI MANJIT SINGH, SR.DR DATE OF HEARING : 14.12.2017 DATE OF PRONOUNCEMENT : 08.01.2018 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 01/12/2016 OF CIT(A)-3 LUDHIANA PERTAINING TO 2009 10 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS 1. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 45,00,0007- AS MADE BY THE ASSESSING OFFICER AND, THEREBY DISMISSING THE APPEAL FILED BY THE APPELLANT. 2. THAT THE LD. ASSESSING OFFICER HAS ERRED IN ISSUING NOTICE U/S 148 SINCE THE ASSESSING OFFICER, WARD-ILL (4), LUDHIANA DID N OT HAVE THE JURISDICTION OVER THE ASSESSEE AS THE JURISDICTION OF THE ASSESS EE LIES WITH THE ASSESSING OFFICER, WARD-VI (4), LUDHIANA, WHERE THE ASSESSEE WAS REGULARLY FILING THE RETURNS AND BEING ASSESSED AND, THUS, THE ASSESSMENT AS FRA MED BY THE ASSESSING OFFICER, WARD- LLL(4), LUDHIANA DESERVES TO BE QUASHED. 3. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, TH E ASSESSING OFFICER DID NOT HAVE REASON TO BELIEVE THAT THE INCOME OF ASSESSEE HAS E SCAPED ASSESSMENT AND, THUS, THE REASSESSMENT PROCEEDINGS DESERVE TO BE QUASHED AS P ER VARIOUS JUDGMENTS ON THIS ISSUE. 4. THAT THE WORTHY CIT(A) HAS ERRED IN NOT ADMITTING THE ADDITIONS EVIDENCE FILED BY THE ASSESSEE DURING THE COURSE OF HEARING OF APPEAL BEFORE HIM ON THE BASIS OF REMAND REPORT OF THE ASSESSING OFFICER THA T AMPLE OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE. 5. NOTWITHSTANDING ABOVE SAID GROUNDS OF APPEAL, IT IS SUBMITTED THAT THE LD. CIT (A) HAS ERRED IN NOT CONSIDERING THAT THE ADDITIONA L EVIDENCE FILED BY THE ASSESSEE, CAN BE ACCEPTED IF IT IS OF VITAL IMPORTA NCE FOR MAKING FAIR ASSESSMENT AS HAS BEEN HELD BY VARIOUS COURTS INCLUDING THE JURISDICT IONAL PUNJAB &T HARYANA HIGH COURT IN THE CASE OF SH. ARJAN DASS VS. CIT (1 978) 112 ITR 480 AND IN MUKTA METAL WORKS AS REPORTED IN 336 ITR 555 (P&H) AND JU DGMENT OF HON'BLE SUPREME COURT IN THE CASE OF SH. TEK RAM AS REPORTE D IN 357 ITR133 (SC). 6. THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT IN THIS CASE, ASSESSMENT WAS WRONGLY FRAMED BY THE INCOME TAX OFF ICER, WARD 3(4), LUDHIANA ITA 443/CHD/2017 A.Y. 2009-10 PAGE 2 OF 4 U/S144/148 OF THE INCOME TAX ACT WITHOU T THE APPEARANCE OF ASSESSEE AS NO NOTICES, WHATSOEVER, WERE RECEIVED BY HIM, WHEREAS THE APPELLANT IS ASSESSED IN WARD 6(4) , LUDHIANA AND, AS SUCH, NO REASONABLE AND SUFFICIENT OPPORTUNITY WAS AFFORDED TO THE ASSESSEE TO REPRESENT THE CASE. 7. THAT HAVING NOT ADMITTED THE ADDITIONAL EVIDENCE, T HE LD. CIT(A) HAS ERRED IN GIVING A FINDING IN PARA 3.10 OF HER ORDER THAT THE ASSESSEE HAS FAILED TO LINK THE CASH DEPOSITS WITH THE WITHDRAWA LS AND HENCE WRONGLY CONFIRMED THE ADDITION. 2. THE LD. AR ADDRESSING THE GROUNDS RAISED SUBMITTED THAT THE GROUNDS HAVE BEEN REVISED BY THE ASSESSEE ON 26 TH OF AUGUST 2017 AS THE EARLIER GROUNDS WERE NOT CLEARLY ADDRESSING THE ISSU ES RAISED BY THE ASSESSEE IN THE PRESENT APPEAL. HOWEVER, IT WAS HIS S UBMISSION THAT NO FRESH ISSUE HAS BEEN RAISED, ONLY THE GROUNDS H AVE BEEN CLARIFIED. THE LD. SENIOR DR CONSIDERING THE REVISED GROUNDS AVAILABLE ON RECORD SUBMITTED THAT HE HAS NO OBJECTION IF THESE A RE SUBSTITUTED AS THESE ADDRESS THE GRIEVANCE OF THE ASSESSEE AND NO THING NEW WAS STATED THEREIN. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS OF PARTIES BEFORE THE BENCH THE ORIGINAL GROUNDD RAISED BY THE ASSE SSEE ARE SUBSTITUTED BY THE REVISED GROUNDS RAISED WHICH HAVE BE EN REPRODUCED HEREINABOVE. 3. THE LD. AR INVITING ATTENTION TO THE IMPUGNED ORDER AN D THE GROUNDS RAISED SUBMITTED THAT THE JURISDICTIONAL ISSUE RA ISED BEFORE THE CIT(A) HAS BEEN DISCUSSED IN PART. HOWEVER, IT HAS N OT BEEN DECIDED ON MERITS. REFERRING TO THE ORDER, IT WAS SUBMITTE D, THAT THE ASSESSEE HAS ALSO RAISED FRESH EVIDENCES BEFORE THE CIT( A) IN VIEW OF THE FACT THAT THE ASSESSMENT ORDER IS PASSED UNDER SE CTION 144. THE CIT(A) RELYING ON THE REMAND REPORT OF THE AO STATED THAT VARIOUS OPPORTUNITIES HAD BEEN PROVIDED AT THE ASSESSMENT STAG E OBJECTED TO THE ADMISSION OF FRESH EVIDENCES. THE LD. AR SUBMITTED THAT THE ARGUMENTS OF THE ASSESSEE THAT THE ASSESSEE NEVER RE CEIVED ANY NOTICE FROM THE AO ARE RECORDED BUT NOT CONSIDERED. THE CIT(A) THEREAFTER THOUGH HOLDING THAT THE ADDITIONAL EVIDENCE WA S NOT TO BE ADMITTED HAS ULTIMATELY COMMENTED UPON THE SAME AND RE JECTED THE APPEAL OF THE ASSESSEE. THE ISSUE, IT WAS SUBMITTED PERTA INS TO THE DEPOSITS OF RS. 45 LAKH WHICH ARE EXPLAINED FROM THE CASH BOOK OF M/S DELTA INDIA WHEREIN THE ASSESSEE WAS A PARTNER. ACC ORDINGLY IT WAS HIS LIMITED PRAYER THAT THE IMPUGNED ORDER MAY BE SE T ASIDE ITA 443/CHD/2017 A.Y. 2009-10 PAGE 3 OF 4 BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE ON MERIT S. THE LD. SR.DR PLACED RELIANCE UPON THE IMPUGNED ORDER, HOWEVER, IN THE FACE OF THE CONTRADICTORY STANDS TAKEN IN PARA 3.6 TO 3.8 AN D 3.10 OF THE ORDER ALSO WAS NOT ABLE TO STATE WHETHER THE EVIDENCES SOUGHT TO BE ADMITTED ULTIMATELY HAVE BEEN ADMITTED OR NOT . ACCORDIN GLY, IN THE PECULIAR CIRCUMSTANCES HAD NO OBJECTION TO REMAND THE IS SUE BACK TO THE FILE OF CIT(A). 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH ON A CONSIDERATION OF THE MATERIAL AVAILAB LE ON RECORD IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNE D ORDER BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE S AME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY. SINCE IN THE FACTS OF THE PRESENT CASE, THE ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 144, ADMITTEDLY TH E EVIDENCES SOUGHT TO BE RELIED UPON BY THE ASSESSEE IN SUPPORT OF ITS CLAIM WERE NOT AVAILABLE ON RECORD. THE EVIDENCE BEING NECESSARY AND RELEVANT FOR DECIDING THE ISSUES IS DIRECTED TO BE TAKEN ON RECORD . A PERUSAL OF THE IMPUGNED ORDER SPECIFICALLY IN PARA 3.1 OF THIS ORDER SH OWS THAT THE ASSESSEE IS AN EMPLOYEE IN THE MECHANICAL PCS COOPE RATIVE INDUSTRIAL SOCIETY AND ALSO A PARTNER IN M/S DELTA INDIA. T HE ASSESSEE IN THE COURSE OF THE ASSESSMENT PROCEEDINGS W AS REQUIRED TO EXPLAIN THE DEPOSITS IN HIS SPECIFIC BANK ACCOUNT NO. 196010100102049 MAINTAINED WITH AXIS BANK LIMITED, PHULLIANW AL, LUDHIANA. SINCE THE ASSESSEE REMAINED UNREPRESENTED BEFO RE THE AO THE ADDITION OF THE SAID AMOUNT WAS MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE AS PER RECORD CHALLENGED BEFORE THE CIT(A) THE JURISDICTION OF THE AO IN PASSING THE ORDER AND ALSO THE M ERITS OF THE ADDITION MADE. THESE EVIDENCES, IT HAS BEEN SEEN, HAVE NOT BEEN ACCEPTED BY THE CIT(A) AND HE HAS ALSO PROCEEDED TO CO MMENT THEREON. THE CONTRADICTORY STAND IS EVIDENT ON THE FACE OF THE RECORD ITSELF WHICH LEAVES THE ORDER OPEN TO THE CHALLENGE OF BEING PERVERSE. WITHOUT COMMENTING UPON THE SUFFICIENCY AND CORRECTNESS OF THE EVIDENCES, IT IS DIRECTED THAT THEY BE ADMITTED AND CONSID ERED. SINCE THE ISSUES ARE BEING SENT BACK IN ENTIRETY TO THE FILE OF T HE CAT(A) IT IS DEEMED APPROPRIATE TO HOLD THAT THE ENTIRE ORDER IS SE T ASIDE AND THE LD. CIT(A) IS DIRECTED TO DECIDE THE ISSUES DE-NOVO AFTER G IVING THE ITA 443/CHD/2017 A.Y. 2009-10 PAGE 4 OF 4 ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD TAKING INTO CONSIDERATION THE FRESH EVIDENCES THE ASSESSEE MAY SEEK TO FILE IN SUPPORT ITS CLAIM. SAID ORDER WAS PRONOUNCED AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01.2018. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.